Luke G. Liacos v. Department of Labor Standards (SPR 20222160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2022 SPR22/2160 Rontear Farmer, Esq. General Counsel Department of Labor Standards 19 Staniford Street, 2nd Floor Boston, MA 02114 Dear Attorney Farmer: I have received the petition of Attorney Brian P. Senier, on behalf of Bricklayers and Allied Craftsmen Local No. 3 (Local 3), appealing the response of the Department of Labor Standards (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2022, Local 3 requested various categories of records relating to a “December 17, 2021 ‘Appropriate Job Classifications’ opinion letter.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1229 Determination of the Supervisor of Records (June 9, 2022). In my June 9th determination, I ordered the Department to clarify its claims under Exemption (e) of the Public Records Law concerning two opinion letter drafts. Subsequently, the Department responded on June 21, 2022. Unsatisfied with the Department’s response, Attorney Senier further appealed on behalf of Local 3, 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). 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

Rontear Farmer, Esq. SPR22/2160 Page 2 October 4, 2022 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. The Department’s June 21st Response In its June 21, 2022 response, the Department claims Exemption (e) of the Public Records Law for withholding two opinion letter drafts. See G. L. c. 4, § 7(26)(e). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its June 21st response, the Department argues, among other things, the following under Exemption (e) with regard to the two opinion letter drafts: The notes/drafts at issue are simply a reflection/extension of the new world order. They are notes taken by the Director and reviewed only by the Director as he endeavored to understand the technical nature of the tasks at issue. The two documents in question are personal to Director Flanagan and were created by Director Flanagan as he began evaluating the evidence and organizing his own

Rontear Farmer, Esq. SPR22/2160 Page 3 October 4, 2022 thoughts around the applicable classification for each task. These documents constitute Director Flanagan’s personal opinions, reflections, and notes and were used exclusively by him as he began to evaluate the appropriate classification of each task at issue and prepared to draft a prevailing wage opinion letter in accordance with the Department’s Public Review Process. They were stored only on the Director’s personal OneDrive and maintained only as part of the Director’s personal files—they were not maintained as part of the Department’s files. Perhaps most importantly, these notes had never been shared with anyone prior to the Department’s receipt of this public records request, and since, the records have been shared ONLY with the Director’s counsel. In an email to this office on October 3, 2022, the Office reiterated its arguments under Exemption (e). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (e) claim made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Rontear Farmer, Esq. SPR22/2160 Page 4 October 4, 2022 Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Luke Liacos, Esq. Brian P. Senier, Esq.