Elizabeth Garthe v. Division of Occupational Licensure (SPR 20252430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2025 SPR25/2430 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 Elizabeth Garthe 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 16, 2025, Ms. Garthe requested: [1] Certified Copies of the BCAB Decisions and Orders for our following Appeals: 17-0007 – August 21, 2019 Decision and Order 20-0108 – May 14, 2021 Decision and Order 21-0115 – July 22, 2022 Decision and Order [2] A Certified Copy of the BCAB May 24, 2022 Hearing Minutes on our Appeal 21-0115 in which BCAB issued two Orders. The Division responded on May 30, 2025. Unsatisfied with the Division’s response, Ms. Garthe petitioned this office and this appeal, SPR25/2430, 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 SPR25/2430 Page 2 August 28, 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Garthe’s interest in obtaining the record shall have no bearing on the public nature of the record. The Division’s May 30th Response In its May 30, 2025 response, the Division provided responsive records redacted pursuant to Exemption (c) of the Public Records Law. In addition, the Division stated, “[p]lease also note that the Division does not ‘certify’ public records responses, which are generally provided to requestors as is subject to proper redactions (which generally cannot take into account the identity of the requestor).” In a follow-up email on July 29, 2025, Ms. Garthe argued that the Division’s response was deficient for the following reasons: [1] …[R]edactions are not allowed for Certified copies. [2] The request paper copies with each page properly Certified… were not provided. [3] Items provided… did not comply… [4] Incorrect documents were provided… Current Appeal In her appeal petition, Ms. Garthe stated that she had a “unique right of access” to the responsive records, and asked this office to order the Division to either “provide the requested un-redacted… proper certified copies” or “certify each page” of “true copy” materials already in Ms. Garthe’s possession.

Jean McCarthy SPR25/2430 Page 3 August 28, 2025 In a telephone conversation with this office on August 21, 2025, an attorney for the Division provided a docket number and stated that the requested records which are the subject of the current appeal relate to ongoing litigation in Essex Superior Court. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the docket of the trial court and verified that the requested records are the subject of active and ongoing litigation in Essex County Superior Court. See Mango, Nicholas K. et al v. Bldg. Code Appeals Bd., Essex Superior Court Docket No. 2277CV00796 (August 22, 2022). In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Garthe