Colman Herman v. Executive Office of Labor and Workforce Development (SPR 20231113)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2023 SPR23/1113 Michael Doheny, Esq. Records Access Officer Executive Office of Labor and Workforce Development One Ashburton Place, Suite 2112 Boston, MA 02108 Dear Attorney Doheny: I have received the petition of Colman Herman appealing the response of the Executive Office of Labor and Workforce Development (EOLWD/Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 11, 2023, Mr. Herman requested, “diversity data for four LWD departments: Unemployment Assistance, Labor Standards, Labor Relations, and Industrial Accidents.” On May 25, 2023, the Office responded. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR23/1113, 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 town 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

Michael Doheny, Esq. SPR23/1113 Page 2 June 12, 2023 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. The Office’s May 25th Response In its May 25, 2023 response, the Office asserts: EOLWD diversity data is maintained for the secretariat as a whole and not broken down by department or division. That aggregate data is available at [URL provided]. Pursuant to MGL c. 66, § 6A(d), we are “not [] required to create a new public record in order to comply with a request.” At this time, EOLWD does not track this information in the format in which you’ve requested it and therefore has no additional documents responsive to your request beyond what has already been provided. Current Appeal In his appeal, Mr. Herman argues: The requested data can be extracted and thus are public records. “[F]urnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.”… 950 C.M.R. 32.07(1)(f). Based on Mr. Herman’s appeal, it is unclear if the Office could extract the 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). To the extent that records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the 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 this response to this office at pre@sec.state.ma.us.

Michael Doheny, Esq. SPR23/1113 Page 3 June 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman