Margaret M. Guarente v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20201638)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2020 SPR20/1638 Ulysses Jacks, Esq. Senior Counsel Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Margaret Guarente appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Guarente requested: • “Minutes or notes submitted to supervisor from John “Jed” Lindholm’s (Manager, Total Rewards) from 9/23/19 audit interview and his subsequent review of reclassification appeal submitted November 2018 for Margaret M. Guarente • Recommendations or reports produced by John “Jed” Lindholm from his 9/23/19 audit interview of Margaret M. Guarente and his subsequent review of the reclassification appeal submitted November 2018 for Margaret M. Guarente. • Reports or recommendations to supervisor produced by Amy Lynch (Manger of Classification & Compensation) regarding review of reclassification appeal submitted November 2018 for Margaret M. Guarente. • Copies of current Form 30 job descriptions for personnel performing similar duties as Margaret M. Guarente that were reviewed by Amy Lynch as part of her review of reclassification appeal submitted November 2018 for Margaret M. Guarente. • Copies of any additional materials referenced by Amy Lynch as part of her review of reclassification appeal submitted November 2018 for Margaret M. Guarente. • Emails between or among Human Resources personnel and between or among Human Resources personnel and District Two personnel regarding the reclassification appeal Submitted November 2018 for Margaret M. Guarente. • Minutes from any Human Resources internal meetings regarding the reclassification appeal submitted November 2018 for Margaret M. Guarente.” 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

Ulysses Jacks, Esq. SPR20/1638 Page 2 September 24, 2020 The Department provided a response on August 24, 2020, producing responsive records and indicating that it would provide additional responsive emails upon completing its review. Unsatisfied with the Department’s response, Ms. Guarente petitioned this office and this appeal, SPR20/1638, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Current Appeal In her appeal petition, Ms. Guarente indicates that she has not received records responsive to all of her requests, specifically “documents requested under the 1st, 2nd, 3rd, 4th, 6th, or 7th bullets” of the request. In its August 24th response, the Department provided approximately forty pages of responsive records, and stated that “the remaining records, compromising the email search, will be sent to you as they are received in our office.” Based on the Department’s response and Ms. Guarente’s petition, it is unclear whether the Department possesses the additional records responsive to the requests identified above. The Department must clarify this matter. I understand that in a conversation with a staff attorney of the Public Records Division, you indicated that the Department intends to provide a supplemental response to Ms. Guarente addressing whether it possesses additional responsive records. Conclusion Accordingly, the Department is ordered to provide Ms. Guarente with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Ulysses Jacks, Esq. SPR20/1638 Page 3 September 24, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Margaret Guarente