Eric J. Ferreira v. Executive Office of Technology Services and Security (SPR 20230169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2023 SPR23/0169 Michelle Burwell Executive Office of Technology Services and Security One Ashburton Place, 8th Floor Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Captain Eric J. Ferreira appealing the response of the Executive Office of Technology Services and Security (EOTSS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, Captain Ferreira sent the following to EOTSS: In June of 2022, the Stirm Group submitted a public records request to the MPTC requesting emails between staff members at the MPTC and members of the Methuen Police Department among other things. My understanding is those types of requests would be sent to the EOTSS and a secure link would then be sent back to the MPTC to download the found items. Stirm Group submitted that request on our behalf. Would we be able to gain access to the link that was provided to the MPTC in June? Maybe we could receive the data another way? We are specifically looking for the exact emails which were sent at the time in response. On January 27, 2023, after not receiving a written response to the January 11th request, Captain Ferreira petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Captain Ferreira indicated, “…I received a phone call from [EOTSS] last week and was verbally informed they would be denying my request, citing attorney-client privilege. I requested they provide a written denial citing their privilege or exemption. To date, I have not received anything.” 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 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

Michelle Burwell SPR23/0169 Page 2 February 10, 2023 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Subsequent to the opening of this appeal, I learned that EOTSS provided Captain Ferreira with a response on January 27, 2023. Conclusion Accordingly, where EOTSS provided Captain Ferreira with a written response to his January 11th request, I will consider this administrative appeal closed. Captain Ferreira may appeal the substantive nature of EOTTS’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Captain Eric J. Ferreira