Laura H. Ortiz v. Division of Administrative Law Appeals (SPR 20222843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2022 SPR22/2843 Chief Edward B. McGrath Chief Administrative Magistrate Division of Administrative Law Appeals 14 Summer Street, 4th Floor Malden, MA 02148 Dear Chief McGrath: I have received the petition of Laura Ortiz appealing the response of the Division of Administrative Law Appeals (Division/DALA) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On September 7, 2022, Ms. Ortiz requested “…a copy of multiple public records manuals that we believe may have been given to DALA by the AGO possibly between 2015-2016 and also after the new Public Records Law was updated in 2017 or even after that possibly into 2019-2020.” The Division responded on September 15, 2022. Unsatisfied with the Division’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2843, 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(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). 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

Chief Edward B. McGrath SPR22/2843 Page 2 December 22, 2022 The Division’s September 15th response In its September 15, 2022 response, the Division stated that “DALA/BSEA do not have any records responsive to your request.” No Duty to Create Records Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, § 6A(d), 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). Conclusion Where the Division has indicated that it does not possess records responsive to Ms. Ortiz’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Ortiz is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz