Wayne Willis v. Department of Developmental Services (SPR 20212120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2120 Brian Fleming, Esq. Assistant General Counsel/ Records Access Officer Executive Office of Health & Human Services Department of Development Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: I have received the petition of Wayne Willis appealing the response of the Department of Development Services (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On August 3-4, 2021, Mr. Willis asked a series of questions and requested any “… data base relative to responses …received in the past from any and all DDS Employees using the title: DDS RAO.” On August 18, 2021, the Department responded. Unsatisfied with the Department’s response, Mr. Willis petitioned this office and this appeal, SPR21/2120, 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(d)(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 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). 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

Brian Fleming, Esq. SPR21/2120 Page 2 September 2, 2021 The Office’s August 18th response In its August 18, 2021 response, the Department stated, “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 07/085 (June 5, 2007), and Supervisor of Public Records Decision, SPR 20/0757 (May 19, 2020). Items Nos. 1-7 of your August 3, 2021, email and Items Nos. 1-3 of the August 4, 2021 email are questions, and no records exist that are responsive.” In response to the inquiry regarding the database, the Department stated. “… [the Department] directs you to [an identified] link.” No Duty to Create Records Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, §6A(d), 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. 66, §10(a)(ii). Conclusion Where the Department does not possess any additional records responsive to Mr. Willis’ request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Willis 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: Wayne Willis