Joseph M. McNichols v. Board of Registration of Professional Engineers and Land Surveyors (SPR 20232897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2023 SPR23/2897 Jean McCarthy Records Access Officer Board of Registration of Professional Engineers and Land Surveyors Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Joseph McNichols appealing the response of the Board of Registration of Professional Engineers and Land Surveyors (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 27, 2023, Mr. McNichols requested all public records concerning two numbered transactions. On October 30, 2023, the Board responded and provided Mr. McNichols with a website link to submit his records request. Unsatisfied with the Board’s response, Mr. McNichols petitioned this office and this appeal, SPR23/2897, 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 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

Jean McCarthy SPR23/2897 Page 2 December 15, 2023 custodian must provide the responsive records. Current Appeal In his current appeal, Mr. McNichols claimed that the Board violated the public records law because the electronic form that the website was linked to required him to provide a full name and state the reason for his request. The Board’s October 30th response In the Board’s October 30, 2023, response it stated, “[p]lease complete a public records request and submit as directed. Here is a link to the request form. https://www.mass.gov/forms/dpl-public-records-requests.” Based on the Board’s October 30th response, it remains unclear if the Board possesses records responsive to Mr. McNichol’s request. The Board is advised, “[a] request for public records may be delivered to the [RAO] by hand or via first class mail at the record officer’s business address, or via electronic mail to the address posted by the agency or municipality that the [RAO] serves.” See G. L. c. 66, § 10(a)(iii). Therefore, the Board may not require that a requestor use a particular form or method of requesting records of the Board. 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). 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). Therefore, I find that the Board has not met its burden in responding to this request. Conclusion Accordingly, the Board is ordered to provide Mr. McNichols with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Mr. McNichols may appeal the substantive nature of the Board’s subsequent response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph McNichols