Keith Malarick v. Division of Occupational Licensure (SPR 20252236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2025 SPR25/2236 Malav Patel, Esq. Assistant General Counsel Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Patel: I have received the petition of Keith Malarick appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 18, 2025, Mr. Malarick requested “… all documents, communications, and materials related to Complaint Docket #2025-000275-IT-ENF …” for the dates March 30, 2025 to June 18, 2025. The Division responded on July 1, July 8, and July 28, 2025. Unsatisfied with this response, Mr. Malarick petitioned this office and this appeal, SPR25/2236, 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). 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. 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

Malav Patel, Esq. SPR25/2236 Page 2 August 13, 2025 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 Responses In its July 1, 2025 response, the Division informed Mr. Malarick that it would require additional time to produce responsive records. In its July 8, 2025 response, the Division provided Mr. Malarick with a link to an online folder containing the responsive records. On July 28, 2025, Mr. Malarick informed the Division that he was unable to access the responsive records. In response to these concerns, the Division offered to produce the responsive records in an alternative format. Current Appeal In his July 31, 2025 petition to this office, Mr. Malarick requested that the Division be ordered “… to provide the records in a form consistent with the law.” Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of the Division’s July 28th response, I encourage the parties to communicate directly to resolve any outstanding issues regarding the format of the responsive records. Conclusion Accordingly, the Division is ordered to provide Mr. Malarick 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. Malarick may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Malav Patel, Esq. SPR25/2236 Page 3 August 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Keith Malarick