Felicia Sullivan v. Executive Office of Education (SPR 20201738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2020 SPR20/1738 Matthew Connolly, Esq. General Counsel and Records Access Officer Executive Office of Education One Ashburton Place; Room 1403 Boston, MA 02108 Dear Attorney Connolly: I have received the petition of Felicia Sullivan, Esq. appealing the response of the Executive Office of Education (EOE) to a request made to the Department of Early Education and Care for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2020, Attorney Sullivan requested, pursuant to the Fair Information Protection Act (FIPA), G. L. c. 66A the following records: • [Her] entire Human Resource [f]ile; • All electronic files pertaining to Felicia Sullivan, including e-mails and meetings about or including Felicia Sullivan; • All handwritten and electronic notes created by Felicia Sullivan; • All documents created by Felicia Sullivan; • All emails sent or received by Felicia Sullivan at [an identified email address]; • All calendar invites including or pertaining to Felicia Sullivan; • All text messages sent and received by Felicia Sullivan [from an identified telephone number]; and • Any and all emails and text messages of third parties pertaining to Felicia Sullivan. In response to Attorney Sullivan’s request, the EOE provided her with a July 20, 2020 response under the Public Records Law. Enclosed with the July 20th response, Attorney Sullivan was provided with a copy of her HRCMS record, and a copy of her PACE transcript. Attorney Sullivan’s final payroll information was emailed to her. Previously, on June 29, 2020, a copy of Attorney Sullivan’s personnel file was provided to her under the provisions of G. L. c. 149, § 52C. 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

Matthew Connolly, Esq. SPR20/1738 Page 2 October 1, 2020 In its July 20th response, the EOE asserts, “[t]he remainder of [Ms. Sullivan’s] request does not fall within the scope of FIPA….” The EOE’s response asserts that the records are not subject to FIPA, because Ms. Sullivan’s request seeks records that are subject to the Public Records Law. The EOE states, “FIPA involves the Commonwealth’s collection, maintenance, and dissemination of personal information relating to identifiable individuals. See M. G. L. 66A, § 1.” Further, EOE’s response states, “FIPA expressly excludes from the meaning of personal data information contained in a public record, and thus, public records are excluded from the definition of personal data under FIPA. See id., Torres v. Attorney General, 391 Mass 1 (1984); Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 419 (1988).” In my August 20, 2020 determination, I found that based on EOE’s July 20th response, the EOE did not meet its burden of specificity in claiming that a substantial number of the requested records would be exempt under the attorney-client privilege, Exemption (d) and the work product doctrine. Your July 20th response also indicated that EOE may be withholding responsive records under other exemptions in the Public Records Law in addition to the records it is withholding under the attorney-client privilege and the attorney work-product doctrine, as it operates through Exemption (d). I found the EOE did not meet its burden of specificity in responding to Attorney Sullivan’s request, by not specifically claiming the additional exemptions that may apply to withhold records either in their entirety, or to portions of those records. I ordered the EOE to provide a response to specifically explain its exemption claims. See SPR20/1317 Determination of the Supervisor of Records (August 20, 2020). The EOE provided Attorney Sullivan with a further response on September 3, 2020, which Attorney Sullivan appealed to the Supervisor on September 17, 2020, and the current appeal was opened. On September 25, 2020, the EOE provided an 11-page response to address the issues Attorney Sullivan detailed in her September 17th petition. Conclusion Accordingly, based on the EOE’s September 25th response, I will consider this appeal closed. If outstanding issues remain, Attorney Sullivan may file an appeal relating to the September 25th response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Felicia Sullivan, Esq.