Michael Damiano v. Department of Veteran Services (SPR 20230383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0383 Matthew Deacon, Esq. General Counsel Department of Veterans Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Deacon: I have received the petition of Michael Damiano, of the Boston Globe, appealing the response of the Department of Veterans Services (Department/DVS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 18, 2023, Mr. Damiano requested numerous emails for named persons for various dates and “[a]ll resumes, CVs, or other records of work history for [a named person] and all emails or email threads to which such records were attached or in which such records were referenced.” Subsequently, Mr. Damiano modified his request on January 25, 2023 and narrowed the search terms. The Department responded on February 9, 2023. Unsatisfied with the response, Mr. Damiano petitioned this office and this appeal, SPR23/0383, 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. 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

Matthew Deacon, Esq. SPR23/0383 Page 2 March 10, 2023 The Department’s February 9th response In its February 9, 2023 response, the Department located numerous records and responded to each request advising the status of records. The Department produced a portion of the responsive records. The Department advised, “DVS will continue to review records and will produce records on a rolling basis, which are not exempt or otherwise protected from public disclosure. DVS reserves the right to retrieve any exempted, privileged, or otherwise protected materials inadvertently included in this production. Any such production is not, and shall not be considered or deemed, a waiver of any applicable privileges or protections from disclosure.” Current appeal In his appeal, Mr. Damiano advised, “[o]n February 9, DVS responded with a portion of the responsive records and referred to those records as ‘the first production’... The letter also noted that agreed upon search terms had identified several hundred additional emails that would be reviewed for responsiveness under public records law and then provided ‘on a rolling basis.’ No further records ... have been produced.” Based on the Department’s response, it is unclear if the Department possesses any additional records responsive to the request, and if so, when it intends to provide those records. 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, a records access officer or designee shall permit inspection or provide or furnish a copy of all public records within the custody and control of the custodian at reasonable times and without unreasonable delay under G. L. c. 66, § 10(a). 950 C.M.R. 32.06(2)(a). As a result, I find that the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Mr. Damiano with a response to the request 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: Michael Damiano