Elizabeth Garthe v. Division of Occupational Licensure (SPR 20252453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2453 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 July 29, 2025, Ms. Garthe requested: Un-redacted, Certified paper copies with an embossed stamp and signature on each page of the following BCAB Decisions and Orders relating to our property… BCAB Docket # Date Description 16-0016/17/18/19 Dec 27, 2016 4 dockets included in one Decision & Order 17-0006 Feb 27, 2017 Decision & Order 17-0007 Feb 27, 2017 Original Decision & Order, NOT the Aug 21, 2019 Remand Decision & Order[.] The Division responded on August 5, 2025. Unsatisfied with the Division’s response, Ms. Garthe petitioned this office and this appeal, SPR25/2453, 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

Jean McCarthy SPR25/2453 Page 2 August 29, 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. 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 August 5th Response In its August 5, 2025 response, the Division provided responsive records redacted pursuant to Exemption (c) of the Public Records Law. In addition, the Division stated, “…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).” Current Appeal In her appeal petition, Ms. Garthe stated: This appeal is similar to our SPR25/2430 appeal, but involves a different set of DOL/BCAB non-responsive materials provided by the RAO… We request that the Secretary of State support our right to unique access for these materials and order the DOL to provide the requested un-redacted, paper, properly certified with stamp and signature on each page (to Registry/Court Standards) copies... 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 County Superior Court.

Jean McCarthy SPR25/2453 Page 3 August 29, 2025 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