Gina M. Heck v. Human Resources Division (SPR 20243185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3185 Michele Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Gina M. Heck appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Ms. Heck requested the following “... 5 complaints … filed with the Center of Expertise/COE and a complaint filed on my behalf”: [1] COM0004263 on June 4, 2023[;] [2] COM0004532 on September 12, 2023[;] [3] COM0004685 on November 16, 2023[;] [4] COM0004833 on January 18, 2024[;] [5] COM0004911 on February 16, 2024[.] Previous Appeal This request was the subject of a previous appeal. See SPR24/2933 Determination of the Supervisor of Records (November 12, 2024). In my November 12th determination, I ordered the Division to clarify its claims under Exemptions (b), (c), and (f) for withholding responsive records. Subsequently, the Division responded on November 25, 2024. Unsatisfied with the Division’s response, Ms. Heck petitioned this office, and this appeal, SPR24/3185, 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 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

Michele Heffernan, Esq. SPR24/3185 Page 2 December 10, 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 November 25th Response In its November 25, 2024 response, the Division states that it is withholding responsive complaints pursuant to Exemptions (b), (c), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(b), (c), (f). The Division also indicates that the records are the subject of pending litigation. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its November 25th response, the Division states the following: Gina Heck, who appeared to identified to the Human Resources Division as Gina Surabian when making her request has litigation pending against the Commonwealth. As such, the Human Resources Division would ask that your office deny the appeal on that basis. At a minimum, there are two cases pending at the Department of Labor Relations, one arbitration, and six cases at Step III of the grievance procedure under the collective bargaining agreement covering Ms. Heck employment with the Commonwealth. This office has reviewed the complaints issued by the Department of Labor Relations and verified that pending administrative matters, relating to the records that are the subject of Ms. Heck’s requests, are active and ongoing before the Department of Labor Relations. See In the Matter of Commonwealth of Massachusetts/ Secretary of Administration and Finance/ Department of Developmental Services and Service Employees International Employees, Local

Michele Heffernan, Esq. SPR24/3185 Page 3 December 10, 2024 509. (Department of Labor Relations Case No. SUP-23-10124 & SUP-23-10343 (May 20, 2024) and Case No. SUP-24-10474 (May 31, 2024)). In light of the pending matters, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of these actions could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Gina M. Heck