Patrick D. McPhee v. Office of the Attorney General (SPR 20230001)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2023 SPR23/0001 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Patrick D. McPhee appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 30, 2022, Mr. McPhee requested, “[a]ny/all information, the Attorney General ADA department, Attorney General Civil Rights and all these department employees, including but not limited to supervisory, directors and Attorneys has from January 1, 2022. On December 2, 2022, Mr. McPhee modified the request to include all information the AGO has between AGO employees or other departments or state agencies pertaining to Patrick McPhee. Previous appeal This request was the subject of a previous appeal. See SPR22/2890 Determination of the Supervisor of Records (January 3, 2023). The AGO responded on December 22, 2022. Unsatisfied with the response, Mr. McPhee petitioned this office and this appeal, SPR23/0001, 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. 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

Lorraine A.G. Tarrow, Esq. SPR23/0001 Page 2 January 10, 2023 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 AGO’s December 22nd response In its December 22, 2022 response, the AGO stated, “… your request falls under the Massachusetts Fair Information Practices Act (FIPA), G.L. c. 66A, and associated AGO regulations, 940 C.M.R. 11.00 et seq., as it concerns information (‘personal data’) related to a specifically named individual, i.e., yourself, that is not a public record under G.L. c. 66, § 10 and G.L. c. 4, § 7, cl. 26. Today we are making available to you 103 pages of records, which are available to you under FIPA.” Current appeal In his appeal, Mr. McPhee asserts that, “… there are documents and emails and documents sent between the Civil Rights [named person] and her supervisor.” Mr. McPhee further states, “[t]here are also attachments missing, that are [referred] to in the emails. Looking there is no emails to her boss or who he is.… The complaint on the Civil Rights department is not in or who the investigator was. I don’t see the AG consumer complaint, I emailed in? I don’t see anything on Complaint against both the Mass Attorney General … Mass attorney General ADA compliance Department …” Records in Existence; Possession, Custody, or Control The AGO 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 AGO’s response, and information provided in Mr. McPhee’s appeal petition, it is unclear whether the AGO possesses additional records responsive to this request. The AGO is asked to clarify. Conclusion Accordingly, the AGO is to provide Mr. McPhee with a response to his request in a manner consistent with the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Lorraine A.G. Tarrow, Esq. SPR23/0001 Page 3 January 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick D. McPhee