Joseph Dwinell v. Massachusetts Department of Higher Education (SPR 20241562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1562 Christopher J. Grimaldi, Esq. Assistant General Counsel, DHE Massachusetts Department of Higher Education One Ashburton Place, Room 1401 Boston MA 02108 Dear Attorney Grimaldi: I have received the petition of Joe Dwinell, of the Boston Herald, appealing the response of the Department of Higher Education (Department/DHE) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 15, 2024, Mr. Dwinell, requested, “... any and all documentation on [an identified individual’s] job at Roxbury Community College; including her salary, summary of job, working hours, oversight including whom she reports to in the post. If she does or does not have a state-funded P-card (Procurement card) in this post….If she does have a P-card, the Herald is requesting all receipts from the card for her entire tenure at Roxbury Community College.” The Department responded on May 22, 2024. Unsatisfied with the Department’s response, Mr. Dwinell petitioned this office and this appeal, SPR24/1562, was opened as a result. Subsequently the Department provided a supplemental response on May 30, 2024, which Mr. Dwinell appealed. 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Christopher J. Grimaldi, Esq. SPR24/1562 Page 2 June 6, 2024 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 May 22nd and May 30th responses In its May 22, 2024 response, the Department stated, “... the Department is not in possession, custody, or control of any responsive records. Please be advised that if any such records exist, they would be maintained at the institutional level. Insofar as your request pertains to [an identified individual’s] salary at Roxbury Community College, the Commonwealth’s publicly available data on CTHRU-Statewide Payroll states the following: ‘Annual Rate...’” In its May 30, 2024 response, the Department asserted, “...there is no substance to Mr. Dwinell’s appeal. To begin with, [the named individual] is not, nor has she ever been, an employee of the Board of Higher Education (‘BHE’) nor DHE, the executive agency for BHE established pursuant to M.G.L. c. 15A, §6.” The Department further asserted: ... it also appears that Mr. Dwinell has conflated an informal press inquiry with the process and expectations of a formal Public Records Request submitted pursuant to— and subject to the procedural framework of— M.G.L. c. 66, §10. The December 2022 edition of “A Guide to the Massachusetts Public Records Law” ... provides that an RAO “is not required by the Public Records Law to answer questions or create a record in response to a request…” Here, DHE timely provided Mr. Dwinell with the only information in its possession that was relevant to his Public Records Request – namely, [the named individual’s] publicly available salary data. In addition, on May 22nd, DHE Communications Director ... extended Mr. Dwinell the courtesy of providing him with an RCC-specific public records request form to submit his request directly to RCC, the presumed keeper of the records in this matter. However, it is DHE’s understanding that, as of this writing, Mr. Dwinell filed this appeal with the Secretary’s office before taking the reasonable step of filing a public records request with RCC’s own RAO, which he did not do until May 23rd. Mr. Dwinell’s own frustration with having to submit an additional public records request to RCC does not override the fact that DHE’s own written response to him on May 22nd was both comprehensive and expressly permitted by law. . . .

Christopher J. Grimaldi, Esq. SPR24/1562 Page 3 June 6, 2024 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). Conclusion Accordingly, where the Department has confirmed that it does not possess the requested records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Dwinell is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joe Dwinell