James Racine v. Executive Office for Administration & Finance (SPR 20250946)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/0946 Carlos Loredo, Esq. Associate Counsel Executive Office for Administration and Finance State House, Room 373 24 Beacon Street Boston, MA 02133 Dear Attorney Loredo: I have received the petition of James Racine, of the Massachusetts Teachers Association, 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 March 25, 2025, Mr. Racine requested the following: 1. The final, implemented wage parameters or guidelines that were actually communicated to or used by the Board of Higher Education and/or the Board of Trustees of the University of Massachusetts for collective bargaining purposes for fiscal years 2023, 2024, and 2025. 2. Any memoranda, emails, letters, or other communications transmitting these final parameters from the Executive Office for Administration and Finance to the Board of Higher Education and/or the Board of Trustees of the University of Massachusetts for the above fiscal years. The Office responded on April 7, 2025. Unsatisfied with the Office’s response, Mr. Racine petitioned this office, and this appeal, SPR25/0946, 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). 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 Loredo, Esq. SPR25/0946 Page 2 April 22, 2025 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 Office’s April 7th Response In its April 7, 2025 response, the Office stated the following: A&F has no records responsive to your request for the “final wage parameters or guidelines” or for the communication described. Records responsive to your request may be requested from the Human Resources Division (HRD) on their website... We are not withholding any public records based on a statutory or other legal exemption and we are not charging fees for this request. Current Appeal In his appeal petition, Mr. Racine contends the following: I believe this response is inadequate and improper for the following reasons. First, according to the Commonwealth’s own website, Human Resources Division is a division within A&F, not a separate agency. A&F’s response creates an unnecessary procedural hurdle by requiring me to submit multiple requests to different divisions within the same executive office. A&F should either produce responsive records or coordinate with its subdivision to fulfill my request, rather than requiring me to submit a separate request. Second, it is implausible that A&F does not have any documents responsive to my request. The requested records relate to significant policy decisions that affect thousands of public employees and millions in state expenditures. A&F, as the agency with ultimate responsibility for state fiscal management, must have records related to these parameters. In fact, by directing me to the Human Resources Division for the records, A&F effectively acknowledges that the records exist.

Carlos Loredo, Esq. SPR25/0946 Page 3 April 22, 2025 Records in Existence; Possession, Custody, or Control Please note 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). Further, 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 G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in Mr. Racine’s appeal petition, it is unclear whether the Office may possess records responsive to his request. If the Office does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Office is ordered to provide Mr. Racine 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. Racine may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: James Racine