Charles N. Gallo v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20230231)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 17, 2023 SPR23/0231 Valerie Connolly Records Access Officer Office of the Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Charles N. Gallo appealing the response of the Office of the Secretary of the Commonwealth (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 8, 2022, Mr. Gallo requested three categories of records, including the following: Document showing the number of determinations issued by the Supervisor of Records from January 1, 2017 through present, and the disposition in each case (such as appeal denied; order issued to public entity/RAO; appeal closed with no order issued, etc.) ... in electronic format in a searchable machine‐readable form such as Microsoft Excel. The Office replied on November 18, and November 23, 2022, providing a link to a website, and indicating that it does not possess records responsive to the above portion of the request. Unsatisfied with the Office’s response, Mr. Gallo 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 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). 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

Valerie Connolly SPR23/0231 Page 2 February 17, 2023 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. The Office’s Responses In an email to Mr. Gallo on November 18, 2022, the Office states that “the Public Records Division does not assemble public records determinations as such,” and provides a link to the Public Records Appeal Status website. Following additional correspondence by email and telephone, in an email on November 21, 2022, the Office confirmed that “there are no records responsive with respect to the third category of [the] request.” Please be 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, 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). However, 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). In his appeal petition, Mr. Gallo contends that “it would be shocking if data is not kept regarding the number of determinations issued by the Supervisor of Records and the disposition in each case.” In a conversation with a staff attorney on February 14, 2023, the Office confirmed that it does not possess records responsive to this part of Mr. Gallo’s request. Conclusion Where the Office confirmed that it does not possess records responsive to the third part of Mr. Gallo’s request, I will now consider this administrative appeal closed. If Mr. Gallo 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).

Valerie Connolly SPR23/0231 Page 3 February 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Charles N. Gallo