Laura H. Ortiz v. Division of Administrative Law Appeals (SPR 20230015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2023 SPR23/0015 Kay Phongsa Records Access Officer Division of Administrative Law Appeals 14 Summer Street, Fourth Floor Malden, MA 02148 Dear Ms. Phongsa: I have received the petition of Laura Ortiz appealing the responses of the Division of Administrative Law Appeals (Division/DALA) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Ms. Ortiz requested: [T]he following public records specifically, Related or Responsive in any way to 9/7/22 public records request: “RE: RAO types of Manuals given to DALA by the AGO 2015-2020 or other” and also: “Best Practices Update for AGO Public Records Officers and Friends” (May 2015); “Best Practices Update for AGO Public Records Officers and Friends” (June 2016); “Best Practices Update II for AGO Public Records Officers and Friends” (November 2016); “Best Practices the Sequel for AGO Public Records Officers and Friends” (January 2019) or any recent “Best Practices Updates/Sequels for AGO Public Records Officers and Friends” timeline: 9/7/22-9/29/22 a) all correspondence (including attachments) to/from DALA 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 b) all notes, correspondence within DALA and/or DALA 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 DALA to DALA staff communications regarding the above public records requests in any way 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

Kay Phongsa SPR23/0015 Page 2 January 20, 2023 c) all text communication to/from DALA that discussed our public records request above or records related/responsive in any manner by DALA and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office d) 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 DALA and: Attorney General’s Office, and/or anyone representing Attorney General’s Office, and/or other on behalf of Attorney General’s Office e) notes from any phone conversations that discussed our public records request above or records related/responsive in any manner between anyone at DALA and with anyone at the AGO . . . On October 14, 2022, the Division responded. Unsatisfied with the Division’s response, Ms. Ortiz petitioned this office and this appeal, SPR23/0015, 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. 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 Division’s October 14th Response In its October 14, 2022 response, the Division states: Attached to the email with this response are copies of all the records responsive to part a) of your request…. The agency does not have any records responsive to your requests b), c), d), e).

Kay Phongsa SPR23/0015 Page 3 January 20, 2023 Current Appeal In her appeal, Ms. Ortiz argues: DALA’s RAO is refusing to give us access to records that [exist], are in [its] [custody] and possession and is ignoring [its] duties and responsibilities under G. L. c. 66, § 10(a)(ii) and G. L. c. 66, § 10(b)… Based on Ms. Ortiz’s appeal, it is unclear if the Division possesses additional records responsive to the request. 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). To the extent that additional records exist, I find the Division must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Division 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 (10) 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