Richard L. Banks, Jr. v. Human Resources Division (SPR 20232518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2023 SPR23/2518 Michele M. Heffernan, Esq. Records Access Officer Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Richard L. Banks, Jr., appealing the response of the Human Resources Division (Division) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2023, Mr. Banks requested the following records: [1.] [A]ll organizational or agency records (in chart form or any other form) which reference HRD employee . . . and reflect who [named individual]’s current supervisor or manager is. [2.] [A]ll organizational or agency records (in chart form or any other form) which reference who [a named individual]’s current supervisor or manager is required to report to. The Division provided a response on October 16, 2023. Unsatisfied with the response, Mr. Banks petitioned this office and this appeal, SPR23/2518, 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

Michele M. Heffernan, Esq. SPR23/2518 Page 2 November 6, 2023 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. Current appeal In his appeal, Mr. Banks states that the Division “did not include any organizational or agency records reflecting who [named individual]’s supervisor reports to as requested.” The Division’s October 16th response In its October 16, 2023 response, the Division provided Mr. Banks with a record responsive to Item 1 of his request. Unclear if additional records exist Based on the Division’s response and Mr. Banks’ appeal, it is unclear if the Division possesses additional records responsive to the request. Specifically, the Division must clarify if it possesses a record that reflects “who [named individual]’s supervisor reports to” as described in Mr. Banks’ request. 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). 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). Consequently, the Division must clarify whether additional records exist. Conclusion Accordingly, the Division is ordered to provide Mr. Banks with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Richard L. Banks, Jr.