Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2022 SPR22/1502 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).” Previous Appeals This request was the subject of previous appeals. See SPR22/1146 Determination of the Supervisor of Records (May 31, 2022); SPR22/1400 Determination of the Supervisor of Records (June 29, 2022). In my June 29th determination, I closed SPR22/1400 in light of the Division’s June 22, 2022 supplemental response. Unsatisfied with the Division’s response, Commonwealth Transparency 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). 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. SPR22/1502 Page 2 July 15, 2022 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. Current Appeal In the appeal petition, Commonwealth Transparency contends, among other things, that “all records between January 1, 2017 and February 18, 2018 are missing despite being requested and responsive,” and that “there are missing records from other employees of the BSEA, OpenCommonwealth is aware of other responsive records which were not acknowledged, [and] not released.” The Division’s Response In its June 22, 2022 response, the Division states that it has “completed the search of Bureau of Special Education (BSEA) employees text messages to or from past and current employees of Murphy Hesse, Toomey and Lehane, llp (A.K.A. MHTL).” In its June 14, 2022 response, the Division states that it has “not provided text messages between a BSEA staff member and a former employee of MHTL contained on the BSEA’s staff member’s personal cell phone. The MHTL employee did not work for MHTL while the BSEA staff member worked at the BSEA. They were law school classmates and are friends. None of the text messages concern BSEA activities.” 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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 this case, where the requestor has cited a timeframe where responsive records may be missing, and contends that text messages of some employees were not included, I find it is unclear whether the Division possesses additional responsive records. The Division must clarify this. 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

Edward B. McGrath, Esq. SPR22/1502 Page 3 July 15, 2022 this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency