Paul C. Nordberg v. Office of the Comptroller (SPR 20220802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0802 Parris S. Kyriakakis, Esq. Records Access Officer Office of the Comptroller One Ashburton Place, 9th Floor Boston, MA 02108 Dear Attorney Kyriakakis: I have received the petition of Paul C. Nordberg appealing the response of the Office of the Comptroller (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 12, 2022, Mr. Nordberg requested multiple categories of records concerning “Line Item 4200-0500 in the FY2007 Final State Budget” and “Line Item 4200-0500 in the FY2009 Final State Budget.” The Office responded on March 28, 2022. Unsatisfied with the Office’s response, Mr. Nordberg appealed, and this case 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 agency or municipality 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. Att’y 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. 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. 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

Parris S. Kyriakakis, Esq. SPR22/0802 Page 2 April 15, 2022 Current Appeal In his appeal petition, Mr. Nordberg questions whether the documents he seeks exist, and whether they could have been destroyed. The Office’s March 28th Response In its March 28, 2022 response, the Office provided Mr. Nordberg with a responsive spreadsheet and a link to its policies. In addition, the Office advised Mr. Nordberg to contact the Division of Youth Services and the Office of the State Auditor for records not in the Office’s possession. Please note that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In an email to this office and Mr. Nordberg on April 11, 2022, the Office confirmed that “the Office of the Comptroller has provided the requester with all responsive records in response to their request.” Additionally, in a phone conversation with this office on April 13, 2022, the Office further explained that the additional records that Mr. Nordberg is seeking are not the types of records typically maintained by the Office. Conclusion Where the Office has confirmed that it does not possess additional records responsive to Mr. Nordberg’s request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul C. Nordberg