Laura H. Ortiz v. Department of Labor Standards (SPR 20222845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2022 SPR22/2845 Rontear Farmer, Esq. General Counsel Department of Labor Standards 19 Staniford Street, 2nd Floor Boston, MA 02114 Dear Attorney Farmer: I have received the petition of Laura Ortiz appealing the response of the Department of Labor Standards (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2022, Ms. Ortiz requested, compliance manuals from 2015 to 2019. On September 15, 2022, the Department responded. On September 29, 2022, Ms. Ortiz modified her request to include, “…emails, notes, text, slack calls or recordings, messages, phone logs, and notes from any phone conversations within DLS and/or DLS server (or other unnamed communication program) that allows staff to communicate, that discussed her September 7, 2022, public records request…” On October 6, 2022, the Department responded. Unsatisfied with the Department’s responses, Ms. Ortiz petitioned this office and this appeal, SPR22/2845, 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 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. 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

Rontear Farmer, Esq. SPR22/2845 Page 2 December 20, 2022 The Department’s September 15th and October 6th responses On September 15, 2022, the Department indicated that they had no responsive records to Ms. Ortiz’s request. In its October 6, 2022 response, the Department provided Ms. Ortiz with 28 responsive emails. Current Appeal In her appeal, Ms. Ortiz claims that the Department did not provide all responsive records to her request. In an email dated December 14, 2022, the Department confirmed that all records responsive to Ms. Ortiz’s request have been provided. 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). Conclusion Where the Department does not possess any additional records, 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, 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: Laura Ortiz