Shane M. Fitzpatrick v. Office of the Attorney General (SPR 20252219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2025 SPR25/2219 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 Shane M. Fitzpatrick 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 July 2, 2025, Mr. Fitzpatrick requested the following records: [C]opies of all public records, including internal or external communications, emails, documents, and notes referencing or stemming from any communication between [identified individuals], between January 1, 2025 and July 11, 2025. This request includes, but is not limited to: Emails sent to or from [an identified individual] regarding or responding to any message sent by [an identified individual]; Internal notes, drafts, memoranda, or summaries reflecting such communications; Any documents generated as a result of communications with the undersigned, including referrals, internal coordination, or follow-up correspondence; Email threads including [an identified individual] that mention “[an identified individual],” “...@gmail.com,” or any variation thereof. The AGO provided Mr. Fitzpatrick with a response on July 17, 2025. Unsatisfied with the response, Mr. Fitzpatrick petitioned this office and this appeal, SPR25/2219, 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

Hanne Rush, Esq. SPR25/2219 Page 2 August 12, 2025 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 July 9, 2025 appeal, Mr. Fitzpatrick stated, “[t]he AGO’s actions undermine the core principle of transparency enshrined in the Massachusetts Public Records Law.” The AGO’s July 17th Response In its July 17, 2025 response, the AGO states, “...your request falls under the Massachusetts Fair Information Practices Act (FIPA), G.L. c. 66A, and associated AGO regulations, 940 C.M.R. 11.00 et seq., as it concerns information (‘personal data’) related to you, a named individual, that is not contained in a ‘public record’ under G.L. c. 66, § 10 and G.L. c. 4, § 7 , cl. 26, and would be withheld from disclosure in their entirety in response to any public records request because appropriate redaction of identifying information is not possible.” The AGO further asserted, ... we have identified the following records that are available to you in accordance with FIPA: email communications exchanged between you and me with regard to a public records request filed with the AGO on April 15, 2025 and email communications exchanged in June and July 2025, mostly from you to me regarding your pending litigation matters. All of those communications should be saved in your email folders, including your Inbox and Sent folders. Such records constitute/contain “known personal data” under the Massachusetts Fair Information Practices Act (FIPA), G.L. c. 66A, and associated AGO regulations, 940 C.M.R. 11.05(h). Please let me know if you are missing any of the above records and would like us to send you a copy. . . . Finally, we have identified and enclose three (3) pages of additional records that constitute personal data available to you under FIPA. Information contained

Hanne Rush, Esq. SPR25/2219 Page 3 August 12, 2025 within the record has been removed because it is not personal data as defined by G.L. c. 66A, § 1. Where the AGO has stated in its response that it is willing to provide Mr. Fitzpatrick with “email communications exchanged between you and me with regard to a public records request filed with the AGO on April 15, 2025 and email communications exchanged in June and July 2025, mostly from you to me regarding your pending litigation matters[,]” the parties are encouraged to continue to communicate directly to facilitate providing any responsive records. No Duty to Create Records Under the Public Records Law, a custodian 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 its response, the AGO stated “[a]dditionally, please note that the AGO found no records responsive to your request for “[i]nternal notes, drafts, memoranda, or summaries reflecting such communications.” Accordingly, where the AGO has confirmed that it does not possess records responsive to this request, and has no duty to create records responsive to the request, I find that this portion of Mr. Fitzpatrick’s appeal is resolved. Fair Information Practices Act (FIPA) The AGO is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Based on the AGO’s response, it is unclear what records have been withheld from disclosure under FIPA and what information has been removed from the responsive three pages of additional records. The AGO must clarify this matter. Conclusion Accordingly, the AGO is to provide Mr. Fitzpatrick 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

Hanne Rush, Esq. SPR25/2219 Page 4 August 12, 2025 electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Fitzpatrick may appeal the substantive nature of the AGO’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Shane Fitzpatrick