Paul Burns v. Executive Office for Administration & Finance (SPR 20242470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2024 SPR24/2470 Carlos E. Loredo, Esq, Associate Counsel Executive Office for Administration and Finance Commonwealth of Massachusetts State House, Room 373 24 Beacon Street Boston, MA 02133 Dear Attorney Loredo: I have received the petition of Paul Burns appealing the response of the Executive Office for Administration and Finance (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On August 16, 2024, Mr. Burns requested, “... records of costs and prevailing wage sheets for all outside labor (i.e.,, labor of anyone not an employee of the Commonwealth of Massachusetts) used to perform construction, upgrades, rehab, or installation at the Bay State Correctional facility in Norfolk MA (now used as a shelter) for the period January 1, 2024 until present. This should include, but not be limited to: labor to perform roof work, labor to remove razor wire from the fences, labor to install or service HVAC, and so on. Costs should be delineated by line item and month when the work was performed.” On August 29, 2024, the Office provided a response. Unsatisfied with the Office’s response, Mr. Burns petitioned this office and this appeal, SPR24/2470, 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. 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

Carlos E. Loredo, Esq. SPR24/2470 Page 2 September 13, 2024 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 Office’s August 29th Response In its August 29, 2024 response, the Office stated, “A&F has no records responsive to this request.” No Duty to Create Records Under the Public Records Law, the Office 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). In a conversation between the Office and an attorney at the Public Records Division, the Office confirmed that it had no responsive records. Conclusion Accordingly, where the Office has confirmed that it does not possess records responsive to Mr. Burns’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Burns 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: Paul Burns