Megan Hamilton-McKeon v. Massachusetts Commission Against Discrimination (SPR 20241102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2024 SPR24/1102 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of Megan Hamilton-McKeon appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2024, Ms. Hamilton- McKeon requested “copies of the transcripts for Dockets Numbered 17NEM02673 and 23NEM03480.” The Commission provided a response on April 12, 2024, indicating it does not possess responsive records. Unsatisfied with the Commission’s response, Ms. Hamilton-McKeon petitioned this office and this appeal, SPR24/1102, 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. 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. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a 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

Ruthy Barros SPR24/1102 Page 2 April 29, 2024 records custodian must provide the responsive records. The Commission’s April 12th Response In its April 12, 2024 response, the Commission stated that “[a] diligent search of Commission records did not reveal any documents responsive to [the] request.” Current appeal In her appeal petition, Ms. Hamilton-McKeon contends that the Commission provided “an unsatisfactory response,” and “that transcripts are necessary to the civil action, Docket Number 2472CV0047.” No Duty to Create Records Please be advised that 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 addition, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation between this office and the Commission on April 24, 2024, the Commission confirmed that it does not possess records responsive to Ms. Hamilton- McKeon’s request. Conclusion Accordingly, where the Commission confirmed it does not possess records responsive to Ms. Hamilton-McKeon’s request, I will now consider this administrative appeal closed. If Ms. Hamilton-McKeon 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 § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon