Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1590 Edward McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 1 Congress Street, 11th Floor Boston, MA 02114 Dear Chief 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 April 26, 2022, the requestor sought “[a]ny and all calendaring documents including electronic calendars of the BSEA director.” Previous appeal This request was the subject of a previous appeal. See SPR22/1149 Determination of the Supervisor of Records (May 25, 2022). In my May 25, 2022 determination, I ordered the Division to clarify whether it possesses data in the Director’s electronic calendar. The Division provided a further response on June 9, 2022. Unsatisfied with the Division’s response, the requestor petitioned this office and this appeal, SPR22/1590, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 McGrath, Esq. SPR22/1590 Page 2 July 25, 2022 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. The Division’s June 9th response In its June 9, 2022 response, the Division explains, “[a]lthough the Director does not keep an electronic calendar, the agency confirms that there is data in the Exchange server pertaining to the Director’s schedule. The data includes some entries with personally identifiable information, primarily student/parent names protected by 20 U.S.C. §1415(b)(7)(A) and 34 CFR §§ 300.32, 300.507, 300.508, 300.622, and 300.623. Once the agency determines how to preserve the confidentiality of the information and provide it to the Requester in redacted form, it will be provided. The agency plans to complete that task within 30 days.” Based on the Division’s response it is unclear when the Division intends to provide the responsive records. The Division is advised that the Public Records Law requires that a records access officer, “identify a reasonable timeframe in which the municipality shall produce the public records sought . . .” See G. L. c. 66, 10(b)(vi); see also 950 C.M.R. 32.06(2)(i). Accordingly, I find the Division must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Division is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency