Laura H. Ortiz v. Division of Administrative Law Appeals (SPR 20230482)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2023 SPR23/0482 Kay Phongsa Division of Administrative Law Appeals Bureau of Special Education Appeals 14 Summer Street, Fourth Floor Malden, MA 02148 Dear Kay Phongsa: I have received the petition of Laura Ortiz appealing the response of the Division of Administrative Law Appeals, Bureau of Special Education Appeals (Division/BSEA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2022, Ms. Ortiz requested five categories of records pertaining to a “9/7/22 public records request.” Previous Appeal This request was the subject of a previous appeal. See SPR23/0015 Determination of the Supervisor of Records (January 20, 2023). In my January 20th determination, I ordered the Division to clarify whether it possesses additional records responsive to the request. Subsequently, the Division responded on January 20, 2023 and again on March 10, 2023. Unsatisfied with the Division’s responses, Ms. Ortiz 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). 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

Kay Phongsa SPR23/0482 Page 2 March 24, 2023 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. Current Appeal In her appeal petition, Ms. Ortiz contends that the Division “had not done its duty with their RAO Superior knowledge to search for the existing additional response records they failed to produce[,]” and she asks that the Division “locate retrieve and produce these additional responsive records.” The Division’s Responses In its January 20, 2023 and March 10, 2023 responses, the Division states that “to the extent that the BSEA is able to deduce what the requester is seeking, no responsive documents exist.” In an email to this office on March 15, 2023, the Division states that “BSEA does not have any records responsive to this public records request that have not already been provided to the requester.” 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). 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). 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). Conclusion Where the Division has confirmed that it does not possess additional records responsive to the request, I will now consider this administrative appeal closed. If Ms. Ortiz 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). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz