Laura H. Ortiz v. Department of Labor Standards (SPR 20222956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 11, 2023 SPR22/2956 Rontear Farmer, Esq. General Counsel Department of Labor Standards 19 Staniford Street 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 “a copy of multiple public records manuals that we believe may have been given to DLS 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.” Ms. Ortiz further requested for the timeline: 9/7/22-9/29/22, the following records: [1] … all correspondence (including attachments) to/from DLS and: Attorney General’s Office, and/or anyone representing the Attorney General’s Office, and/or other on behalf of Attorney General’s Office that discussed our public records request above or records related/responsive in any manner [2] … all notes, correspondence within DLS and/or DLS server (or other unnamed communication program) that allows staff to communicate, that discussed our public records request above or records related/responsive in any manner; and also in reference to: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office and including DLS to DLS staff communications regarding the above public records requests … [3] … all text communication to/from DLS that discussed our public records request above or records related/responsive in any manner by DLS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office [4] … slack call recordings or messages, or phone log and/or other log for any that discussed our public records request above or records related/responsive in any manner (regardless if called by that name) to/from DLS and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/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

Rontear Farmer, Esq. SPR22/2956 Page 2 January 11, 2023 other on behalf of Attorney General’s Office [5] … notes from any phone conversations that discussed our public records request above or records related/responsive in any manner between anyone at DLS and with anyone at the AGO[.] The Department responded on October 6, 2022. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR22/2956, 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. The Department’s October 6th response In its October 6, 2022 response, the Department provided 28 emails. In her appeal, Ms. Ortiz believes additional responsive records exist. Records in Existence; Possession, Custody, or Control The Department is advised 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). Based on the Department’s response, and information provided in Ms. Ortiz’s appeal petition, it is unclear whether the Department possesses additional records responsive to this request. The Department must clarify this matter.

Rontear Farmer, Esq. SPR22/2956 Page 3 January 11, 2023 Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Laura Ortiz