Todd Wallack v. Massachusetts Commission Against Discrimination (SPR 20201870)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2020 SPR20/1870 Theresa Lepore Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Lepore: I have received the petition of Todd Wallack appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested “copies of any public complaints against Moderna Therapeutics of Cambridge, Mass. and/or Norwood, Mass.” The Department provided a response to Mr. Wallack on October 1, 2020, stating that it “does not confirm or deny” the existence of responsive records. Unsatisfied with this response, Mr. Wallack petitioned this office and this appeal, SPR20/1870, 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. 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

Theresa Lepore SPR20/1870 Page 2 October 15, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In its October 1, 2020 response, the Commission states that it “does not confirm or deny the existence of MCAD complaints that have not been issued a disposition.” The Commission further states that “[a] diligent search of our database did not reveal any case fitting the description above that has received an investigative disposition, a necessary procedural step before complaint information is available to the public pursuant to G.L. c. 4, § 7(26)(f) and 804 CMR 1.21 (1)(a) & (b) (2020).” Identifying Records Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § l0(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 ... "); see also Globe Newspaper - - - Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear from the Commission’s response whether it possesses records responsive to Mr. Wallack’s request. Therefore, the Commission must provide a response to Mr. Wallack “identify[ing] any records, categories of records or portions of records,” if any, that it intends to withhold. Conclusion Accordingly, the Commission is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack