Catherine Christina v. Division of Occupational Licensure (SPR 20230496)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2023 SPR23/0496 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: I have received the petition of Catherine and Bill Christina appealing the response of the Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 15, 2022, Mr. and Ms. Christina requested numerous categories of records which they believe were not disclosed with the responses to their previous June 10, 2021 records request, including email attachments, records regarding an identified meeting, records regarding required responses to a directive, and records regarding a specified inspection report. Previous Petition This request was the subject of a previous petition from the Division. See SPR23/2967 Determination of the Supervisor of Records (January 9, 2023). In my January 9th determination, I found that the Division could not be granted relief from the obligation to respond to the request. Subsequently, the Division responded on January 10, 2023, and following further correspondence with Ms. Christina, responded again on February 15, 2023. Unsatisfied with the Division’s responses, Ms. Christina 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

Jessica L. Ellis, Esq. SPR23/0496 Page 2 March 28, 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 Division’s Responses In its January 10, and February 15, 2023 responses, the Division states “that the Division has made a diligent search for records responsive to [the] requests and found only those records that were previously provided to [Mr. and Ms. Christina].” Records in Existence In her appeal petition, Ms. Christina cites numerous specific emails included with previous responses where she believes attachments were either missing or not included. In addition, she refers to a meeting between multiple state and town employees, seeking “any related documentation.” Ms. Christina further contends that “it is hard to believe that there have been no substantive responses submitted ... in response to [the Assistant Chief’s] clear directive for now well over 1 1/2 years later and there has been no serious action by OPSI to address any non-compliance to respond as required.” 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). 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). In its February 15, 2023 letter, the Division “affirms ... that the Division has made a diligent search for records responsive to [the] requests and found only those records that were previously provided to [Ms. Christina].” The Division further reiterates that it has “provided all records in [its] custody, and clearly indicated in each response that [it] had no further records to provide.” Where the Division has confirmed that it provided all responsive records in its custody, I find that this portion of Ms. Christina’s appeal is resolved. Burden of Specificity In correspondence included with her appeal petition, Ms. Christina asks that the Division “provide the rationale for redacting the entire text of [a specified] email.” She contends that “[t]here is no applicable exemption and/or privilege to preclude its disclosure.” Specifically, Ms. Christina refers to an image of an email dated June 21, 2017, from the Deputy General Counsel

Jessica L. Ellis, Esq. SPR23/0496 Page 3 March 28, 2023 for the Division of Professional Licensure, Office of Public Safety and Inspections, where the body of the email and part of the header information have been redacted. Based on the Division’s response, it is unclear which exemption the Division is citing in order to redact this specific record. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Division must clarify this matter. Conclusion Accordingly, the Division is ordered to provide Ms. Christina with a response to her request, provided 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Catherine Christina