Open Commonwealth v. Massachusetts Office of the Treasurer and Receiver General (SPR 20222458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2022 SPR22/2458 Cassandra M. Chung Records Access Officer Massachusetts Office of the Treasurer and Receiver General 24 Beacon Street Boston, MA 02133 Dear Ms. Chung: I have received the petition of Open Commonwealth appealing the response of the Massachusetts Office of the Treasurer and Receiver General (Office) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 16, 2022, Open Commonwealth requested: Any electronic mail where any of the following phrases are contained in the subject, body or any attachments 1. ‘Best practices update for Public Records Officers and friends’ and/or 2. ‘Best practices for AGO Public Records Officers and friends’ and/or 3. ‘Best practices the sequel for AGO Public Records Officers and friends’ The Office responded on October 6, 2022. Unsatisfied with the Office’s response, Open Commonwealth petitioned this office and this appeal, SPR22/2458, 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. Attorney 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

Cassandra M. Chung SPR22/2458 Page 2 November 14, 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. 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 Office’s October 6th Response In its October 6, 2022 response, the Office stated:  We currently do not have an efficient way of reviewing all of Treasury (about 267) employees’ emails with the criteria you stipulated.  We only have access to those Contractor’s emails who were assigned “TRE” email accounts.  We do not have control or custody of emails belonging to Political Appointees.  We do not have control or custody of emails belonging to ‘the Secretary of the Commonwealth and any of its departments or divisions including the Secretary of Public Records which contains the following…’ Based on the Office’s response, it is unclear whether it possesses records responsive to the 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). The Office must clarify whether the requested records exist. Conclusion Accordingly, the Office is ordered to provide Open Commonwealth 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: Open Commonwealth