Carmen Fabery v. Human Resources Division (SPR 20222442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2022 SPR22/2442 Michelle 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 Carmen Fabery appealing the response of the Human Resources Division (Division/HRD) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2022, Carmen Fabery requested “the diversity information in custody of the Human Resources Division (HRD) that specifies the total number of reasonable accommodations granted by the Executive Department of the Commonwealth of Massachusetts to employees claiming to be exempt from Executive Order #595.” The Division responded on October 25, 2022, providing responsive records. Unsatisfied with the Division’s response, Carmen Fabery 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 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 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

Michelle M. Heffernan, Esq. SPR22/2442 Page 2 November 9, 2022 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 November 2nd Response In its November 2, 2022 response, the Division provides numerous spreadsheets. In the appeal petition, Carmen Fabery contends that the request “should have been understood to be covering the period starting with the first exemption to Executive Order #595 (EO #595) being granted reasonable accommodation and ending with the last day such accommodations were granted prior to [the] PRR.” Additionally, Carmen Fabery contends that “the report furnished by the RAO is not up to date. It was reported last December and February in the press that reasonable accommodations granted totaled 256, which happens to be the exact number in the report furnished by the RAO.” In an email to this office and Carmen Fabery on November 2, 2022, the Division explains that it “provided the public record in its possession responsive to this request. HRD did not update its record after December 2021.” Please be 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). Additionally, 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). Conclusion Where the Division has confirmed that it does not possess additional records responsive to Carmen Fabery’s request, I will now consider this administrative appeal closed. If Carmen Fabery 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: Carmen Fabery