Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20221608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2022 SPR22/1608 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 data contained in the case management system used by the BSEA for administration of Hearing Requests.” Previous appeals This request was the subject of previous appeals. See SPR22/1149 Determination of the Supervisor of Records (May 25, 2022) and SPR22/1354 Determination of the Supervisor of Records (June 21, 2022). In my June 21st determination, I directed the Division to clarify whether there are additional responsive records within its case tracking system. The Division provided a further response on July 6, 2022. Unsatisfied with the Division’s response, the requestor petitioned this office and this appeal, SPR22/1608, 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. 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. SPR22/1608 Page 2 July 21, 2022 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 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 July 6th response In its July 6, 2022 response, the Division indicated, “[a]ttached are screen shots showing the searches conducted to obtain the data used in compiling the reports that gave rise to the published data referenced in your public record request. Also attached is the data generated in response to each of the searches.” In the appeal petition, the requestor states: The RAO continues to withhold responsive documents in their entirety. The July 6th response includes screenshots for a program called Time Matters. Time Matters is a Legal Practice management tool owned and operated in a joint venture with Lexis Nexis and PC Law. Time Matters uses a SQL server Data Base as a Back-End data store. The entire SQL Server dataset is responsive to this request. No data from the case management system has ever been provided, only two screenshots. The screenshots included in the response clearly identify that responsive records in the form of data sought in the Original April 26, 2022 request as “Any and all data contained in the case management system used by the BSEA for administration of Hearing Requests.” The RAO has responsive records in the Time Matters management software which have never been provided. The Screenshots provided in the July 6th response are not compliant with the original request of April 26th, 2022 as the request specifically seeks the data “… in the format in which they are regularly maintained…” Based on the Division’s response, in conjunction with the requestor’s claims, it is unclear if additional records exist that are responsive to this request. 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). The Division must clarify this matter. 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

Edward McGrath, Esq. SPR22/1608 Page 3 July 21, 2022 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