Wayne Willis v. Executive Office of Health & Human Services (SPR 20210007)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 15, 2021 SPR21/0007 Alexander deBlieck Records Access Officer Executive Office of Health & Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Wayne Willis appealing the response of the Executive Office of Health & Human Services (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 6, 2020, Mr. Willis requested five categories of records for information related to organizational frameworks, as well as contact information. The Office provided a response on December 29, 2021. Unsatisfied with this response, Mr. Willis petitioned this office and this appeal, SPR21/0007, 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 Office’s December 29th response In its December 29th response, the Office indicates “EOHHS has determined it does not have documents responsive to your request in its possession, custody or control. Please note the 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

Alexander deBlieck SPR21/0007 Page 2 January 15, 2021 Massachusetts Public Records Law, M.G.L. c. 66, § 10 applies to existing records in an agency’s custody, and an agency is not required to answer questions or create a record in response to a requestor’s inquiries. See Supervisor of Public Records Decision, SPR 07/571 (April 3, 2020) and Supervisor of Public Records Decision, SPR 20/0757 (May 19, 2020).” In his January 4th appeal petition, Mr. Willis states “I respectfully request an appeal on the 12/29/2020 response.” Based on the foregoing, it is unclear what the basis of Mr. Willis’ appeal is. Mr. Willis is advised 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(l)(f). Accordingly, Mr. Willis must describe his specific objections to the Office’s December 29th response. Further, please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Based on the above, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis