Joseph M. McNichols v. Division of Occupational Licensure (SPR 20233039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2024 SPR23/3039 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 the following transactions “[1] 2023-003331- VERIFY 6/20/2023, [2] 2023-003449 VERIFY 6/26/2023.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2897 Determination of the Supervisor of Records (December 15, 2023). In my December 15th determination, I found it unclear if the Board possessed records responsive to the request. I also found it unclear how the Board could require use of a specific manner of electronic submission for public records request. On December 15, 2023, the Board responded and provided responsive records with redactions pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Board’s response, Mr. McNichols petitioned this office and this appeal, SPR23/3039, 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). 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 SPR23/3039 Page 2 January 3, 2024 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. Current Appeal In his current appeal, Mr. McNichols claimed that the Board did not provide him with all the responsive records. Mr. McNichols specifically states that the Board did not provide him with all the responsive records for Item 2, specifically an acknowledgment of the request for Item 2, correspondences relating to Item 2, and all emails relating to Item 2. The Board’s December 15th response In the Board’s December 15, 2023 response, it produced responsive records with redactions pursuant to Exemption (c) of the Public Records Law. In its response, the Board stated, The Privacy Exemption, under sub-clause (c) of clause 26 of G.L. c. 4, § 7, exempts the disclosure of personnel and medical information, as well as data, that if disclosed, would constitute an “unwarranted invasion of personal privacy.” Accordingly, such information, if present, including but not limited to, dates of birth, telephone numbers, and information that is not responsive to your request has been redacted from the documents provided. DOL now considers this public records request closed. Based on the Board’s December 15th response, it remains unclear if the Board possesses any additional records responsive to Item 2 of Mr. McNichol’s 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). 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, the Board must clarify this matter.

Jean McCarthy SPR23/3039 Page 3 January 3, 2024 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