Matthew Ferri v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20252319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2025 SPR25/2319 Sofya Gray Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Gray: I have received the petition of Matthew Ferri appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2025, Mr. Ferri requested “...an update to the following [identified] regulation” known as Chapter 30A: State Administrative Procedure Section 4: Petitions for adoption, amendment or repeal of regulations. On July 17, 2025, Mr. Ferri requested, “...a response as to when I can expect to hear a response to my previous request . . .” The Division responded on June 16, 2025 and July 29, 2025. Unsatisfied with the Division’s responses, Mr. Ferri petitioned this office and this appeal, SPR25/2319, 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

Sofya Gray SPR25/2319 Page 2 August 25, 2025 The Division’s June 16th and July 29th Responses In its June 16, 2025 response, the Division stated, “[y]our email has been forwarded to the following office: Registry of Deeds Division . . . In a second email also dated June 16, 2025, the Division stated, “I have forwarded your email to the Director of the Registry of Deeds.” In its July 29, 2025 response, the Division stated, “[w]e have received your FOIA public records request on 7 /25. We currently have no records reflective to your request. We appreciate you taking the time and emailing us with your consideration to update a regulation in the Registry of Deeds.” 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 records responsive to the request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Ferri 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: Matthew Ferri