Wayne Willis v. Department of Developmental Services (SPR 20230951)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2023 SPR23/0951; SPR23/0982 Gabriella K. Eisner, Esq. Assistant General Counsel Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eisner: I have received the petitions of Wayne Willis appealing the responses of the Department of Developmental Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 24, 2023, Mr. Willis sent the following inquiry to the Department, directed to Department Assistant General Counsel Erin Brown: “In January 2021, as a Department RAO, responding to a Public Records Request; when you sent this enclosed letter to me, were you told how to reply, by another person, or were these your own words?” Appeal SPR23/0951 The Department provided a May 5, 2023 response informing Mr. Willis no responsive records exist in the Department’s custody, and that the Department is not required to answer questions or create a new record in response to a requestor’s inquiries. As a result of the Department’s May 5th response, Mr. Willis petitioned the Supervisor of Records (Supervisor), and appeal SPR23/0951 was opened as a result. Appeal SPR23/0982 While a determination by the Supervisor was pending for SPR23/0951, Mr. Willis petitioned the Supervisor regarding his March 21, 2023 communication to the Department. In his March 21, 2023 communication, Mr. Willis inquires the following regarding a Department employee: • Were you ever formally appointed as a Spokesman for [the Department] • Is so, who gave you that position? Who was your supervisor? 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

Gabriella K. Eisner, Esq. SPR23/0951; SPR23/0982 Page 2 May 24, 2023 • On What Day, did the [Department] employees who customarily reported to Hogan Regional, stop reporting to Hogan. This is a simple payroll information • Who ordered the change in location? • Who is your supervisor now? • What are your duties as a: Director InterGov Affairs? On April 4, 2023, the Department provided Mr. Willis with a response to his March 21st communication. Enclosed with its April 4th response, the Department provided two responsive documents: a job description for the Director of Intergovernmental Affairs position and a Staff Announcement email. Unsatisfied with the Department’s April 4, 2023 response, Mr. Willis petitioned this office and SPR23/0982 was opened as a result. In the Department’s April 4th response regarding Mr. Willis’ March 21st communication, the Department informed Mr. Willis, “[y]our email contains various questions for [an identified Department employee]. Please note the Massachusetts Public Records Law, [G. L. c. 66, §10] applies to existing records in an agency’s custody, and an agency is not required to answer questions or create a new record in response to a requestor’s inquires.” The Department further responded in its April 4th response, “[the Department] is not the custodian of Commonwealth of Massachusetts employee human resources information or payroll information. See [Supervisor’s] Decision, SPR19/0178 (February 11, 2019 (supporting the separation of EOHHS from its Constituent Agencies, specifically finding EOHHS Human Resources is centralized and a Constituent Agency is not required to obtain records from EOHHS HR to respond to a public records request). [The Department] understands that you also sent the March 21, 2023 email to the EOHHS RAO at eh.rao@massmail.state.ma.us.” The Public Records Law Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty. Gen. 157, 165 (May 18, 1977). 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). Consequently, the Department is not required to respond to inquiries under the Public Records Law. Conclusion Accordingly, based on the above, I will consider these administrative appeals closed. If Mr. Willis is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c).

Gabriella K. Eisner, Esq. SPR23/0951; SPR23/0982 Page 3 May 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Wayne Willis