Wayne Willis v. Department of Developmental Services (SPR 20221793)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2022 SPR22/1793 Gabriella Eisner, Esq. Acting Records Access Officer Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eisner: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2022, Mr. Willis stated, “please inform me (1) of all emails, and phone calls that [a named individual] sent, received, or were CC’d by anyone in any [capacity] from 1/21/21 to Feb. 15, 2021. I don’t need content. just the amount” and “(2) Please list [what litigation] to which you refer? There was no [litigation]!” The Department provided a response on July 28, 2022. Unsatisfied with the response, Mr. Willis petitioned this office and this appeal, SPR22/1793, 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(d)(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…”); 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 establishing the applicability of an exemption). 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

Gabriella Eisner, Esq. SPR22/1793 Page 2 August 17, 2022 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 Department’s July 28th Response In its July 28, 2022 response, the Department asserts: In response to your first request for all emails and phone calls between January 12, 2021, and February 15, 2021, please find attached an email reflecting the amount of emails/attachments I sent or received between January 12, 2021 and February 15, 2021. In addition, to the extent documents exist, DDS is inquiring about the retrieval of and cost to produce records identifying the number of phone calls I made or received on or between January 12, 2021 and February 15, 2021. In response to your second request, please note that M.G.L. c. 66, § 10, applies to existing records in an agency’s custody, and an agency is not required to answer questions or create a record in response to a Requestor’s inquiries….Your email contains question(s), and no records exist that are responsive. The time spent responding to this request was less than four hours; therefore, there will be no fee for the cost of responding to your PRR. Based on the Department’s response, it is unclear if the Department possesses additional records that may be responsive to his 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). Please be advised, under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). No Duty to Answer Questions, Conduct Research Mr. Willis is advised 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). However, 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). Where Mr. Willis submitted to the Department a question, I find the Department has no duty under the Public Records Law to answer such a question.

Gabriella Eisner, Esq. SPR22/1793 Page 3 August 17, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Willis 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: Wayne Willis