Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2022 SPR22/1146 Edward B. McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 14 Summer Street, 4th Floor Malden, MA 02148 Dear Attorney McGrath: I have received the petition of Commonwealth Transparency appealing the response of the Division of Administrative Law Appeals (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2022, Commonwealth Transparency requested, for a specified time period, “any and all text messages between the BSEA [Bureau of Special Education] (inclusive of all BSEA employees, administration and contractors) and anyone who currently works or has worked at the law firm Murphy Hesse, Toomey and Lehane, llp (A.K.A. MHTL).” The Division responded on May 16, 2022, denying the request. Unsatisfied with the Division’s response, Commonwealth Transparency appealed, and this case was opened as a result. The Public Records Law In its May 16, 2022 response, and in a letter to this office and Commonwealth Transparency on May 20, 2022, the Division states that it “does not have records concerning the private cell phones and . . . does not have access to the data.” “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). All public officials and employees, whether hired, appointed, or elected, have a duty to comply with the tenets of the Public Records Law and its Access Regulations. In this instance, Division employees may be using personal phones to send and receive text messages dealing with the Division’s business. If that is the case, any text messages received or sent by any Division employee or official that pertain to the Division’s business are public records subject to redaction under the exemptions in the Public Records Law. G. L. c. 66, 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

Edward B. McGrath, Esq. SPR22/1146 Page 2 May 31, 2022 § 10A(d); 950 C.M.R. 32.03(4). 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 Division’s response, it is unclear if the text messages dealing with Division business exist and have been retained. Please be advised, the Division must institute safeguards to ensure that all records dealing with the Division’s business are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. The Division should review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Current Appeal In the appeal petition, Commonwealth Transparency contends that “the RAO refuses to provide or even to identify any responsive records, though, he intimates that responsive records likely exist.” The Division’s May 16th Response In its May 16, 2022 response, and its May 20, 2022 letter, the Division states that if the requested text messages are public records, they are exempt under Exemptions (a) and (e) of the Public Rerecords Law. See G. L. 4, § 7(26)(a), (e). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Edward B. McGrath, Esq. SPR22/1146 Page 3 May 31, 2022 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Division cites G. L. c. 233, § 23C, which provides in pertinent part: All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes. G. L. c. 233, § 23C. With regard to “data on cell phones owned by the Commonwealth,” under Exemption (a), the Division argues that “the agency states that BSEA mediators are the only BSEA staff with cell phones. The confidentiality of communications conducted during a mediation is protected by statute. G.L. c. 233, § 23C.” Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the

Edward B. McGrath, Esq. SPR22/1146 Page 4 May 31, 2022 retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.” With regard to “data on cell phones not owned by the Commonwealth,” under Exemption (e), the Division argues that “the individuals using their personal cell phones did so for their own personal use. The data was not maintained as part of the agency’s files and it is not shared with other employees.” Burden of Specificity Based on its response, the Division has not met its burden of specificity in claiming Exemptions (a) and (e) to withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 - - - - - (1995); Flatley, 419 Mass. at 511. In this case, the Division has not identified the records in its possession that it intends to withhold from disclosure. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Although the Division provides the arguments noted above, it is unclear what records responsive to the request the Division is withholding. Therefore, the Division must identify the records it has in its possession that it withheld under Exemptions (a) and (e), as well as provide specific reasons for such withholding. Conclusion Accordingly, the Division is ordered to provide Commonwealth Transparency with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency