Deanna Connolly v. Human Resources Division (SPR 20221948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2022 SPR22/1948 Michele M. Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Deanna Connolly appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2022, Ms. Connolly requested the following records: [1] Current total numbers of employees at the Massachusetts State Police [Department] (including sworn members, civilians, and any/all others working for the [D]epartment who were subject to Executive Order #595); [2] Current number of vaccinated … employees at [the Department] …; [3] Current number of un-vaccinated … employees at [the Department]; [4] Number of employees at [the Department] granted religious exemptions for vaccination …; and [5] Number of employees at [the Department] granted medical exemptions for vaccination. Previous appeal This request was the subject of a previous appeal. See SPR22/1693 Determination of the Supervisor of Records (July 28, 2022). The Division responded on August 5, 2022. In the prior appeal, the Division was asked to clarify whether any additional records exist. Unsatisfied with the response, Ms. Connolly petitioned this office and this appeal, SPR22/1948, 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 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

Michele M. Heffernan, Esq. SPR22/1948 Page 2 September 7, 2022 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 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. The Division’s August 5th Response In the Division’s August 5, 2022 response, the Division stated that it “… has no additional public records responsive to Ms. Connolly’s request. The EO 595 information provided in our earlier response was information reported as of December 2021. We have no updated or additional records.” Under the Public Records Law, there is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Based on a communication between a Public Records Division senior attorney and a Division representative, it is my understanding that no additional records exist responsive to the request. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Connolly is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Deanna Connolly