Todd Wallack v. Executive Office of Health & Human Services (SPR 20230682)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2023 SPR23/0682 Patricia M. Scanlan Records Access Officer Executive Office of Health and Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Ms. Scanlan: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 21, 2023, Mr. Wallack requested “[c]opies of any sexual harassment complaints against any employees of the executive office since 2020.” The Office responded on April 3, 2023. Unsatisfied with the Office’s response, Mr. Wallack 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. 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. 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. 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

Patricia M. Scanlan SPR23/0682 Page 2 April 21, 2023 Current Appeal In his appeal petition, Mr. Wallack contends that “[i]t is unclear from the agency’s response whether the agency has any records in its custody and the agency has not yet responded to a request to clarify the situation.” The Office’s April 3rd Response In its April 3, 2023 response, the Office states the following: The Human Resources Division (HRD) Investigations Center of Expertise (COE) has exclusive jurisdiction to investigate sexual harassment complaints on behalf of the executive branch. Therefore, it is the source for the requested sexual harassment complaints. Possession, Custody, or Control The Office is advised that under the Public Records Law, 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). Based on the Office’s response, it is unclear whether the Office has possession, custody or control of records that are responsive to Mr. Wallack’s request. The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to his 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: Todd Wallack