Scott M. Khourie v. Massachusetts Growth Capital Corporation (SPR 20211700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2021 SPR21/1700 Neil Martin Chief Operating Officer Massachusetts Growth Capital Corporation The Schrafft Center 529 Main Street, Suite 1M10 Charlestown, MA 02129 Dear Mr. Martin: I have received the petition of Scott Khourie appealing the nonresponse of the Massachusetts Growth Capital Corporation (Corporation/MGCC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 1, 2021, Mr. Khourie requested “… [t]he names of the 1864 small businesses whom the Corporation was unable to grant loans to during the period in question.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1570 Determination of the Supervisor of Records (July 9, 2021). In my July 9th determination I found that the Corporation provided supplemental responses to Mr. Khourie on May 18, 2021, and June 15, 2021. Unsatisfied with the Corporation’s responses, Mr. Khourie petitioned this office and this appeal, SPR21/1700, 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

Neil Martin SPR21/1700 Page 2 July 22, 2021 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 Corporation’s responses On May 18th, the Corporation provided Mr. Khourie with a response stating “MGCC never created such a list, and therefore does not have any records responsive to your request.” The Corporation provided a further response on June 15th, quoting from an earlier June 1, 2021 response, stating “MGCC does not have any records responsive to your other requests.” Current Appeal In his current appeal, Mr. Khourie explains “…I have never received the 1864 names of businesses that were denied loans during the period in question, in which Governor Baker publicly stated loans were available to the public during the State of Emergency and Peak of Covid 19 Pandemic… If you cannot provide me with the 1864 names I requested can you please have [named person] provide me with those names directly with your offices cc's.” In an email dated July 17, 2021, the Corporation confirmed that there are no responsive records to Mr. Khourie’s request. No Duty to Create Records 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. Att’y 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 Where the Corporation confirmed it does not possess records responsive to Mr. Khourie’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Khourie is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Neil Martin SPR21/1700 Page 3 July 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott Khourie Robert J. McGovern, Esq.