Keith Malarick v. Division of Occupational Licensure (SPR 20251476)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1476 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Keith Malarick appealing the response of the Division of Occupational Licensure (Division/DOL) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2024, Mr. Malarick requested “records related to the employment of [an identified individual], currently or formerly serving as an investigator with the Division of Occupational Licensure or the Board of Registration in Veterinary Medicine. Specifically, I seek:” [1] Confirmation of his dates of employment. [2] Job titles held during his tenure. [3] Any publicly releasable employment application materials or resume on file, including prior employment history. [4] Confirmation of any disclosed prior employment at the Animal Rescue League of Boston. On May 21, 2025, the Division provided a response to Mr. Malarick. Unsatisfied with the response, Mr. Malarick petitioned this office, and this appeal, SPR25/1476, 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

Jean McCarthy SPR25/1476 Page 2 June 10, 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 Division’s May 21st Response In its May 21, 2025 response, the Division states, “[a] diligent search returned no responsive records in the DOL’s care, custody, or control. The DOL now considers this public records request closed.” Current Appeal In his petition, Mr. Malarick asserts, “[t]he DOL’s May 21, 2025, response claims no responsive records exist. Given that [an identified individual] has conducted official duties for the Veterinary Board — including in a case I was directly involved in — this response is implausible. If the DOL is asserting that it does not employ or oversee [an identified individual] it must state so clearly.” Based upon a telephone conversation between a Public Records Division attorney and a Division representative, the Division confirmed that it has no records responsive to Mr. Malarick’s request. The Division further advised that the Human Resources Division may be the custodian of the records. Mr. Malarick may wish to submit a public records request to this agency. See G. L. c. 66, § 10(b)(iii) ([a] A records access officer . . . shall identify the agency or municipality that may be in possession, custody or control of the public record sought, if known). No Duty to Create Records Under the Public Records Law, the Division 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 Division has confirmed that it does not possess responsive records, and has no duty to create records responsive to the request, I will now consider this

Jean McCarthy SPR25/1476 Page 3 June 10, 2025 administrative appeal closed. Mr. Malarick 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: Keith Malarick