Gary Floyd v. Department of Youth Services (SPR 20210297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2021 SPR21/0297 Ramona Krogman Records Access Officer Department of Youth Services 600 Washington Street, 4th Floor Boston, MA 02111 Dear Ms. Krogman: I have received the petition of Gary Floyd appealing the response of the Department of Youth Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2021, Mr. Floyd requested: “1. How many calls were made to parents and students about the lack of English Classes in 2017-2018 and on what date? I’d also like the name of the DYS employee who made the call. 2. And on what date is your report scheduled to come out …” The Department provided a response on February 5, 2021, which included responsive records redacted pursuant to attorney-client privilege, the work product doctrine, as well as Exemption (f). G. L. c. 4, § 7(26)(f). Unsatisfied with the Department’s response, Mr. Floyd petitioned this office, and SPR21/0297 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 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

Ramona Krogman SPR21/0297 Page 2 February 16, 2021 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). The Department’s February 5th response In its February 5, 2021 response, the Department, with respect to request #1, states the “document has been redacted on the basis of the attorney-client privilege and the work product doctrine, as well as pursuant to G.L. c. 4, §7 clause 26 (f) (the investigatory exemption) …” The Department provides an explanation as the basis for the above privilege and Exemption claims to redact the responsive record. The Department further states, for request #1 “[n]o additional responsive records were identified.” In its response, with respect to request #2, the Department indicates “[a]fter a comprehensive search, DYS has identified no records responsive to your PRR in its possession, custody or control.” In his appeal, Mr. Floyd states, “[t]he DYS attorney told me they made phone calls to parents and clients. I asked how many. They did not answer my questions as to how many were made or on what dates they were made, then they resorted to attorney client privilege to keep it hidden.” Subsequent to the opening of this appeal, the Department contacted this office and confirmed they have no additional responsive records to the request. No duty to create records Please be advised, under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Based on the foregoing, it is unclear what the basis of Mr. Floyd’s appeal is. Specifically, it is uncertain if Mr. Floyd is appealing the redactions the Department made pursuant to attorney- client privilege and the work product doctrine, as well as Exemption (f). Mr. Floyd is reminded 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). Conclusion If unresolved issues remain, Mr. Floyd may file an appeal specifically describing the nature of his objections to the Department’s response.

Ramona Krogman SPR21/0297 Page 3 February 16, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Gary Floyd Cecely A. Reardon, General Counsel