Open Commonwealth v. Executive Office of Technology Services and Security (SPR 20222465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2022 SPR22/2465 Michelle Burwell Records Access Officer Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Ms. Burwell: I have received the petition of OpenCommonwealth.org appealing the response of the Executive Office of Technology Services and Security (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 16, 2022, OpenCommonwealth.org requested: [1] Best Practices Update for Public Records Officers and friends General Counsel’s Office May 2015 ©2015 Office of Massachusetts Attorney General Maura Healey… [2] Best Practices for AGO Public Records Officers and friends General Counsel’s Office June 2016… [3] Best Practices for AGO Public Records Officers and friends General Counsel’s Office November 2016… [4] Best Practices the sequel for AGO Public Records Officers and friends General Counsel’s Office January 2019… The Office provided a response on September 29, 2022. Unsatisfied with the response, OpenCommonwealth.org petitioned this office and this appeal, SPR22/2465, 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 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 Burwell SPR22/2465 Page 2 November 14, 2022 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 September 29th Response In its September 29, 2022 response, the Office asserted, “EOTSS is not the keeper of the records you requested. You need to contact the Attorney General’s Office.” Current appeal In its appeal, OpenCommonwealth.org asserts that the Office “failed to perform a search and provide responsive records.” OpenCommonwealth.org argues that “[i]n 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….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.” In a conversation between an Office representative and a staff attorney in this office, the Office representative confirmed that the Office does not possess any records responsive to OpenCommonwealth.org’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the Office confirmed that it has no responsive records in its possession, I find that OpenCommonwealth.org’s appeal regarding the September 16th request is resolved.

Michelle Burwell SPR22/2465 Page 3 November 14, 2022 Conclusion Where the Office does not possess any records responsive to OpenCommonwealth.org’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If OpenCommonwealth.org 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). Sincerely, Manza Arthur Supervisor of Records cc: OpenCommonwealth.org