Jose L. Negron v. Office of the Treasurer and Receiver General (SPR 20220327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0327 Melinda Troy, Esq. Director of Legal Services State Board of Retirement Office of the State Treasurer One Winter Street, 8th Floor Boston, MA 02108 Dear Attorney Troy: I have received the petition of Jose L. Negron appealing the response of the Office of the State Treasurer State Board of Retirement (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 19, 2021, Mr. Negron requested the retirement application and records regarding an identified individual. Previous appeal This request was the subject of a previous appeal. See SPR21/3394 Determination of the Supervisor of Records (January 12, 2022). The Board provided a supplemental response to this office on January 4, 2022, which the Board mailed to Mr. Negron. Unsatisfied with the Board’s response, Mr. Negron petitioned this office and this appeal, SPR22/0327, 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

Melinda Troy, Esq. SPR22/0327 Page 2 February 14, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Board’s January 4th Supplemental Response In its January 4, 2022 supplemental response, the Board explained, “Mr. Negron appears to be appealing what he alleges to be a denial of a request to provide him with the public records that he sought. While it is true that the Board was not able to provide Mr. Negron with the public records that he requested in December 2021, the reason why that is the case is that the individual about whom Mr. Negron inquired is not retired. As a result, the Board has no records that it could provide in response to Mr. Negron’s request.” In addition, the Board further explained, “[i]f the individual about whom Mr. Negron had most recently inquired had retired from the Massachusetts State Employees’ Retirement System, the Board would have been able to provide him with the record that he requested, albeit most likely with some information redacted. However, because this individual has not retired, the Board had no records that it could provide in response to Mr. Negron’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). Based on the Board’s responses and a conversation with this office, I find the Board has met its duty in responding to this request. The Board has no duty to create records in response to Mr. Negron’s requests. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Negron 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Melinda Troy, Esq. SPR22/0327 Page 3 February 14, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jose L. Negron