Brian M. Maser v. Department of Labor Relations (SPR 20202384)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2020 SPR20/2384 Jillian M. Bertrand, Esq. Chief Counsel/Records Access Officer Department of Labor Relations 19 Staniford Street, 1st Floor Boston, MA 02114 Dear Attorney Bertrand: I have received the petition of Attorney Brian Maser appealing the response of the Department of Labor Relations (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Maser requested “any and all letters, correspondence, e-mails, and/or reports of any kind, and in whatever format, either generated by or received by the Department, or any agent, employee, staff member, or individual of the Department, of the Department’s review or investigation, if such review/investigation was conducted, relating to JLMC Case No. 16-5509.” The Department responded on November 30, 2020, stating that it does not possess responsive records to produce, and stating that any records would be exempt from disclosure pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s response, Attorney Maser petitioned this office and this appeal, SPR 20/2384, 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 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

Jillian M. Bertrand, Esq. SPR20/2384 Page 2 December 15, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its November 30, 2020 response, the Department states that it “has no documents to produce. Should any documents responsive to your request exist, such documents constitute personnel files and, as such, are exempt from disclosure under M.G.L. c. 4, § 7, cl.26(c).” Subsequent to the opening of this appeal, on December 9, 2020 the Department provided a supplemental response, providing additional information regarding its Exemption (c) claim, and providing a privilege log for withholding records pursuant to the attorney-client privilege. In light of this supplemental response, whereas this appeal was opened based on the Department’s November 30th, I will consider this administrative appeal closed. If issues remain outstanding, Attorney Maser may appeal the substantive nature of the Department’s December 9th response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Maser, Esq., KP Law