Wes Doughty v. Department of Revenue (SPR 20240949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0949 Roger H. Randall, Esq. Counsel to the Commissioner Department of Revenue 100 Cambridge Street Boston, MA 02114 Dear Attorney Randall: I have received the petition of Wes C. Doughty appealing the response of the Department of Revenue (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 15, 2023, Mr. Doughty requested, “First Name, Last Name, Middle Initial, Date of Employment, Position, and Annual Salary of each and every employee at your office in Chelsea.” On February 21, 2024, Mr. Doughty modified his request and stated, “I will, however, accept the public record information on the exact person or persons who accepted and deposited my $1800.00 in the agency amount.” Previous Appeal This request was the subject of a previous appeal. See SPR24/0438 Determination of the Supervisor of Records (February 9, 2024). In my February 9th determination, I learned the Department had provided Mr. Doughty with a response. The Department provided supplemental responses on February 15, 2024 and February 29, 2024. Unsatisfied with the responses, Mr. Doughty petitioned this office and this appeal, SPR24/0949, 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

Roger H. Randall, Esq. SPR24/0949 Page 2 April 10, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. 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 Department’s February 15th and February 29th responses In its February 15, 2024 response, the Department stated, “[t]his would be an enormous undertaking, for which we would need to charge you fees … I respectfully ask if you would please narrow your request to a manageable and relevant inquiry about a DOR employee.” On February 29, 2024, the Department further advised, “… it is not even possible to identify the person or persons who accepted and deposited the payment by the U.S. Treasury that was credited to your Massachusetts income tax account. Payments to the Department of Revenue are typically handled either automatically or by a bank with a lockbox arrangement.” Current Appeal In his appeal, Mr. Doughty stated, “I continue to appeal the denial of public records from the Department of Revenue.” During a telephone conversation between the Department and a Public Records Division staff attorney, the Department confirmed that it does not have any records responsive to the modified request. The Department further clarified that credits and payments involving these transactions are either automatic or done through a service set up between a bank and government agencies and that in either case, there are no records associated with any individual person in such transactions. No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the Department has confirmed that it does not possess records responsive to Mr. Doughty’s February 21st modified request, I find that Mr. Doughty’s appeal regarding this issue is resolved.

Roger H. Randall, Esq. SPR24/0949 Page 3 April 10, 2024 Conclusion Accordingly, where the Department does not possess responsive records, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. If Mr. Doughty 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. See G. L. c. 66, §10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Wes C. Doughty