Owen Smith v. Office of the Inspector General (SPR 20233137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 12, 2024 SPR23/3137 James S. Craig, Esq. Senior Counsel Office of the Inspector General One Ashburton Place, Room 1311 Boston, MA 02108 Dear Attorney Craig: I have received the petition of Owen Smith appealing the response of the Office of the Inspector General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 14, 2023, Mr. Smith requested: [1.] The completed application filed by Whittier Regional Vocational Technical School District (Whittier) regarding its intended use of CM-at-Risk project delivery method. [2.] MA OIG’s Notice to Proceed to Use CM at Risk letter for Whittier. [3.] Any correspondence between OIG and Whittier regarding compliance guidance on the use of CM-at-Risk. The Office responded on December 29, 2023. Unsatisfied with the Office’s response, Mr. Smith petitioned this office and this appeal, SPR23/3137, 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 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

James S. Craig, Esq. SPR23/3137 Page 2 January 12, 2024 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. The Office’s December 29th Response In its December 29, 2023 response, the Office argues that pursuant to G. L. c. 12A § 13, the Office’s records are expressly exempt from the Public Records Law. See G. L. c. 12A § 13. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Office cites G. L. c. 12A § 13 to argue that all Office of the Inspector General records are expressly exempt from the Public Records Law. The statute, G. L. c. 12A § 13, provides in relevant part: All records of the office of inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four.

James S. Craig, Esq. SPR23/3137 Page 3 January 12, 2024 G. L. c. 12A, § 13. Based upon the Office’s response, and as the records of the Office “shall not be public records as defined in section seven of chapter four” under G. L. c. 12A § 13, as it operates through Exemption (a) of the Public Records Law, I find the Office has met its burden in responding to this records request. See G. L. c. 12A § 13 (providing that all records of the office of the inspector general “shall be confidential” and “shall not be public records as defined in section seven of chapter four”). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Smith is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Owen Smith