Christopher J. O'Donnell v. Massachusetts Department of Higher Education (SPR 20200814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2020 SPR20/0814 Ashley Wisneski, Esq. Deputy General Counsel Department of Higher Education One Ashburton Place, Room 1401 Boston, MA 02108 Dear Attorney Wisneski: I have received the petition of Christopher J. O’Donnell appealing the response of the Department of Higher Education (Department/DHE) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on May 8, 2020, Mr. O’Donnell requested: “1. The name; title; salary; and bargaining unit affiliation, if any; of all employees at the Department of Higher Education employed on May 1, 2020.” Unsatisfied with the response Mr. O’Donnell appealed and SPR20/0814 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s May 18 - 19, 2020 Response In its May 18th response, the Department stated, “[t]he information that you are seeking is already publicly available through the Comptroller’s CTHRU Statewide Payroll website. Using this website, you can search Department of Higher Education staffing information by employee One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Ashley Wisneski, Esq. SPR20/0814 Page 2 June 1, 2020 name, job title, or bargaining unit (you can toggle through these options by using the drop-down menu after ‘broken down by’). The information on the Comptroller’s website is current as of April 24, and we have not had any changes in our staffing since that time.” In its May 19th response, the Department asserted in part pursuant to the Massachusetts Public Records Law, G.L. c. 66 § 6A(d), “[i]f the public record requested is available on a public website … the public records access officer may furnish the public record by providing reasonable assistance in locating the record on the public website.” The Department contends that reasonable assistance was provided. Current appeal In his appeal, Mr. O’Donnell stated, “[c]an you please let me know if this request will be met or if I have to use the DHE directly and look up the salaries in a database?” Conclusion Upon review of the file, it does not appear from his appeal petition that Mr. O’Donnell is appealing the Department’s response. Consequently, it is unclear what the basis of Mr. O’Donnell appeal is. Mr. O’Donnell is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Mr. O’Donnell may wish to clarify this matter and his objections to the Department’s response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher J. O’Donnell