Quan Doe v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20211287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2021 SPR21/1287 Valerie Connolly Records Access Officer Administrative Services Division Secretary of the Commonwealth One Ashburton Place, Room 1710 Boston, MA 01208 Dear Ms. Connolly: I have received the petition of Quan Doe appealing the response of the Administrative Services Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2021, Mr. Doe requested “. . . names and titles, the personnel files, commissions, surety bonds/insurance, arrest records, FARA disclosures and any possible membership/corporate conflicting interests in organizations/businesses for [named individuals].” The Division responded on May 3, 2021, providing certain records and indicating it did not possess other records. The Division also withheld a portion of the records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Claiming to not have received all the responsive records, Mr. Doe petitioned this office and this appeal, SPR21/1287, 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

Valerie Connolly SPR21/1287 Page 2 June 7, 2021 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. The Division’s May 3rd response In its May 3, 2021 response, the Division enclosed responsive records. The Division also withheld personnel records under Exemption (c), and indicated it did not possess arrest records, FARA disclosures, and membership records. In his appeal petition, Mr. Doe states that the following records, “Surety bonds/insurance of the specified individuals[;] FARA disclosures of the specified individuals[;] [and] Any possible membership/corporate conflicting interests in organizations/businesses of the specified individuals[,]” were not provided. In an email correspondence on June 2, 2021, the Division confirmed that all records responsive to this request have been provided. No Duty to Create Records Please be advised, under the Public Records Law the Division is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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). Where the Division indicates that all responsive records have been provided, I find that Mr. Doe’s appeal pertaining to these portions of the request has been resolved. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Doe is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Quan Doe