Hector Montalvo v. Division of Insurance (SPR 20241986)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/1986 Mindy Merow Rubin, Esq. Records Access Officer Division of Insurance 1000 Washington Street, Suite 810 Boston, MA 02118 Dear Attorney Rubin: I have received the petition of Hector Montalvo appealing the response of the Division of Insurance (Division/DOI) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2024, Mr. Montalvo requested: [1.] . . . any and all reports, complaints, responses, on [an identified complaint][;] [2.] . . . name of person doing such investigation[;] [3.] . . . employee ID number, any complaints against such employee handling [an identified complaint][;] [4.] . . . employment date of employee handling [an identified complaint][;] [5.] . . . any documentation that your agency has issued, and received regarding [an identified complaint][;] [6.] . . . your policy, how many cases assigned to each worker, name of supervisors working your department[;] [7.] [w]ork schedule for the employee handling [an identified complaint][.] The Division responded on June 26, 2024, and July 10, 2024. Unsatisfied with the Division’s responses, Mr. Montalvo petitioned this office and this appeal, SPR24/1986, was opened as a result. While this appeal was pending, the Division submitted a supplemental response on July 11, 2024. 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 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

Mindy Merow Rubin, Esq. SPR24/1986 Page 2 July 24, 2024 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. 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 Division’s June 26th and July 10th Responses In the Division’s June 26, 2024 response, a representative from the Division stated, “if you would like to make a public records request, you must do so via our website” and provided a link to the Division’s Public Records Request Portal.” In an email dated July 10, 2024, a representative from the Division explained, “[a]ll public records request must be submitted to the Records Access Officer. A Records Access Officer (RAO) is the person responsible for responding to requests for public records.” The Division provided a link to the Division’s Public Records Request Portal and noted that “the RAO has been CC’ d [sic] on this e-mail as well.” The Division’s July 11th Supplemental Response In an email to this office, Mr. Montalvo, and the records access officer (RAO) for the Division dated July 11, 2024, a Division representative again provided a link to the Division’s Public Records Request Portal and noted, “[m]y intention is to direct you to the correct RAO who can process your request as quickly as possible. As this is the direct link that is monitored and used for DOI public record request it is the best option for your request.” The Division representative further stated, “[m]y apologies, as in no way was my intention of interfering with or delaying your request.” Current Appeal In his appeal, Mr. Montalvo states, “[p]lease provide some assistance in forcing public servants to follow the public records laws. . . . It appears [a Division representative] is violating my rights and refused to submit my written public records request.” Public Records Request Format In its June 26th response, the Division informed Mr. Montalvo that he must make the

Mindy Merow Rubin, Esq. SPR24/1986 Page 3 July 24, 2024 request through the Division’s Public Records Request Portal. The Department is advised, pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written. . . . [W]ritten requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). In this case, where the Division indicated in its July 10, 2024 response and supplemental July 11, 2024 response that it has not required use of the Division’s Public Records Request Portal in order for Mr. Montalvo to submit his request, I find that the Division has complied with the requirements of 950 C.M.R. 32.06(1)(a)–(d). Public Records Requests; Petitions to Supervisor of Records Mr. Montalvo is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the RAO of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the Division’s RAO has received a copy of the request through this appeal, the Division must provide Mr. Montalvo with a response to the request. Conclusion Accordingly, the Division is ordered to provide Mr. Montalvo with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Montalvo may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Hector Montalvo