Gabriel O'Hara Salini v. Office of the Attorney General (SPR 20251887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2025 SPR25/1887 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Gabriel O’Hara Salini appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2025, Mr. Salini requested the following records for the time period January 1, 2014, to present: [1] Access to all non-tort settlement and judgment authorization forms submitted to the Comptroller’s office for approval by your office. I have provided a link to a blank form to make clear what we seek under the law ... [2] All Settlement and Judgment Multiple Claimant Spreadsheet requests submitted by your office. [3] All records related to claims made by individuals or entities which resulted in the [AGO] making a payment from the state Settlement and Judgment Fund, pursuant to M.G.L. c.30A and M.G.L. c258 sec 1-5. On June 4, 2025, Mr. Salini modified the request and stated, “[w]e would be interested in the settlement cases that ended in a payment being made.” The AGO provided Mr. Salini with responses on June 2, 2025, June 4, 2025, June 10, 2025, and June 11, 2025. Unsatisfied with the responses, Mr. Salini petitioned this office and this appeal, SPR25/1887, was opened as a result. 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

Hanne Rush, Esq. SPR25/1887 Page 2 July 14, 2025 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. 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. Current appeal In his June 30, 2025 appeal, Mr. Salini stated, “I am writing to appeal the denial of a state public records request submitted to the Attorney General’s Office on Tuesday, May 22.” The AGO’s June 2nd, June 4th, June 10th, and June 11th responses In its June 2, 2025 response, the AGO stated, “[t]he team looked into it and the non-tort settlement authorization forms (and the claimant spreadsheet that is part of that form) are saved in individual case files. Because of this and your time frame, the team would have to manually search through several thousand case files, some of which are stored in paper boxes offsite, to locate them. Additionally, your request for all records related to claims appears to mean that you’re looking for all of the records in each case file for which we locate a settlement form. Our office cannot calculate the number of hours of labor required to complete the request as written. We are reaching out to see if there is a way to narrow your request.” In its June 4, 2025 response, the AGO stated, “[j]ust wanted to follow up to see if you wished to narrow your request at all? One idea for that being if there are certain cases you’re interested in you could start with just requesting those and then make additional requests as needed.” In its June 10, 2025 response, the AGO stated, “[w]e are looking into your request as modified on June 4 and should have more information for you soon. Were you able to get in touch with the Comptroller’s office?”

Hanne Rush, Esq. SPR25/1887 Page 3 July 14, 2025 In its June 11, 2025 response, the AGO stated, Please be advised that a public records request must “reasonably describe” the records being sought so that a custodian “can identify and locate [the requested records] promptly.” See G.L. c. 66, § 10(a)(i) and 950 CMR 32.06(b); see also Friedman v. Division of Admin. Law Appeals & Bureau of Special Edu. Appeals, 2024 WL 1121739 (2024) (“[t]he reasonable description requirement is a necessary bulwark of the public records law, as the law ‘was not intended to reduce government agencies to full-time investigators on behalf of requesters.’” (citation omitted). As modified, your request for “cases that culminated in an effective settlement being paid” does not meet the “reasonableness” standard. Each settlement amount posted by the website maintained by the Comptroller’s Office, CTHRU, includes the name of a payee (usually the name of an attorney and/or law firm). AGO records are not maintained by payee or payment amount, but rather maintained by litigation matter. In order to identify the particular case associated with a payment listed on CTHRU, the AGO would need to manually review each case file for litigation cases handled by either the AGO’s Trial Division or the Constitutional and Administrative Law Division between 2014 and 2025. As an example of the volume of cases that would need to be manually reviewed, the Trial Division handled approximately 2,995 cases within the requested timeframe. ... it is unclear which records you seek within the case file or whether you are asking the AGO for the entire case file for each of the cases for which a payment has been made since 2014. Please note that, because the case files are litigation files, each file will include internal AGO communications and other documents that constitute or contain privileged attorney-client communications and/or attorney work product that are protected from disclosure by law. Finally, due to the age of the records, many of the case files will consist of a review of both paper and electronic files. The public records law permits a custodian of public records to charge requesters for certain costs associated with responding to public records requests. See G.L. c. 66, § 10(d) and 950 CMR 32.07. An agency may require payment of that fee prior to complying with a public records request. See G.L. c. 66, § 10(a). Based on the foregoing we cannot process your modified request as written any further. Clearly, our Office, or any custodian, could not respond with responsive non- exempt records without a substantial time expenditure (and resultant cost to you) far outside what the public records law requires or intended. Please note that we would not be able to waive any costs, although incalculable at this time, associated with such an undertaking. In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated:

Hanne Rush, Esq. SPR25/1887 Page 4 July 14, 2025 [The requestor] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Mr. Salini and the AGO to communicate in order to facilitate producing records efficiently and affordably. Mr. Salini may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The AGO must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. Salini and the AGO communicate further as described above, Mr. Salini may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1).

Hanne Rush, Esq. SPR25/1887 Page 5 July 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Gabriel O’Hara Salini