David McKenna v. Executive Office of Labor and Workforce Development - Department of Family and Medical Leave (SPR 20222877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 30, 2022 SPR22/2877 Katherine M. Bensel Keeper of Records Department of Family and Medical Leave P. O. Box 838 Lawrence, MA 01842 Dear Ms. Bensel: I have received the petition of David McKenna appealing the response of the Department of Family and Medical Leave (Department/DFML) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 10, 2022, Mr. McKenna made the following request: [1] What number of self-employed people have opted in to PFML as individuals? [2] What number of self-employed people have applied for PFML benefits? [3] What number of self-employed people have been approved for PFML benefits? On November 28, 2022, Mr. McKenna clarified his requests, and stated, among other things, that his request “is for statistics that do not allow identification of particular returns.” He further explained that he “would like to know the total number of self-employed individuals who completed an opt in to PFML by making required contributions to the PFML trust fund via DOR.” Further, he stated that he “would like to know the total number of PFML applications where there was no associated Employer EIN OR the EIN matches the SSN, and what number were approved or denied.” The Department responded to the requests on November 28, 2022 and December 12, 2022, respectively, providing a number of statistics, and stating that it does not possesses any additional responsive records. Unsatisfied with the Department’s response, Mr. McKenna 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 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

Katherine M. Bensel SPR22/2877 Page 2 December 30, 2022 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 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 Department’s Responses In its November 28, and December 12, 2022 responses, the Department provides Mr. McKenna with a number of statistics, and states that it does not possess other responsive records. In his appeal petition, Mr. McKenna contends that the Department has not provided all records responsive to his request. No Duty to Answer Questions, Conduct Research, Create Documents Please note 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). Further, 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). However, in 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. See 950 C.M.R. 32.04(5). In an email to this office and Mr. McKenna on December 29, 2022, the Department reiterates that “except for the very limited amount of records it has already produced, DFML does not have possession, custody, or control of public records responsive to the requests.” Among other things, the Department explains that “the employer contribution data shared with the DFML by the [Department of Revenue] does not distinguish the contributions by employment type. Additionally, self-employed benefit application and approval rates are not metrics that the DFML tracks.” The Department further explains that “the DFML’s statute does not require it to track or report the data on self-employed individuals as sought by the requestor.”

Katherine M. Bensel SPR22/2877 Page 3 December 30, 2022 Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. McKenna’s request, I will now consider this administrative appeal closed. If Mr. McKenna 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: David McKenna