Gerard F. Mackin, Jr. v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20222362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2022 SPR22/2362 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Gerard F. Mackin, Jr. appealing the response of the Office of the Secretary of the Commonwealth (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2022, Mr. Mackin requested the following: [A]ll documents provided to Secweb staff instructing them on determining whether requests are (1) frivolous (2) intended to harass (3) not made in good faith (4) not intended to obtain documents of general interest. Additionally ... all documents instructing public document staff as to how to determine whether requested document[t]s are exempt under 950 CMR 32.08 (2)(b) The Office responded on October 18, 2022, providing responsive records. Unsatisfied with the Office’s response, Mr. Mackin appealed, 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. Att’y 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

Valerie Connolly SPR22/2362 Page 2 October 31, 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. Current Appeal In his appeal petition, Mr. Mackin states “[w]as that a good faith response I hereby appeal to secrao for a new determination.” The Office’s October 18th Response In its October 18, 2022 response, the Office provides Mr. Mackin a copy of A Guide to the Massachusetts Public Records Law (February 2022), and states that “no records were withheld.” Records in Existence Mr. Mackin 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, the Office has confirmed that all responsive records were provided. Conclusion Where the Office has confirmed that all responsive records were provided to Mr. Mackin, I will consider this administrative appeal closed. If Mr. Mackin is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Gerard F. Mackin, Jr.