950 CMR, § 32.08 - Appeals
(1)
Appeal to the
Supervisor.
(a) a requester may
petition the Supervisor for failure by a records access officer to comply with
a requirement of
950 CMR
32.00.
(b)
an oral request, while valid as a public record request, shall not be the basis
of an appeal under 950 CMR 32.08.
(c) petitions for appeal of a response by a
records access officer must be made within 90 calendar days of the date of the
response by a records access officer.
(d) petitions for appeal of a failure to
respond within the timeliness requirements of
950 CMR
32.00 must be made within 90 calendar days of the
request.
(e) all petitions for
appeal shall be in writing and shall specifically describe the nature of the
requester's objections to the response or failure to timely respond.
(f) requesters shall provide to the
Supervisor complete copies of all correspondence associated with the petition,
including:
1. a complete copy of the letter by
which the request was made, including in the case of electronic communications
all header information indicating time, date, subject, sender and recipient
email addresses; and
2. a complete
copy of all written responses associated with requests subject to the petition
for appeal, including in the case of electronic communications all header
information indicating time, date, subject, sender and recipient email
addresses.
(g) in
petitioning the Supervisor, the requester shall provide a copy of such petition
to the records access officer associated with such petition.
(h) if the requester's petition for appeal is
related to a previous appeal to the Supervisor, the requester's petition shall
refer to the previous appeal number.
(2)
Dispositions of Appeals and
Records Access Officer Petitions.
(a) the Supervisor shall issue a written
determination regarding any petition submitted in accordance with 950 CMR
32.08(1) not later than ten business days following receipt of the petition.
The Supervisor shall issue a written determination regarding any petition
submitted in accordance with M.G. L. c. 66, § 10(c)(vi) and M.G. L. c. 66,
§ 10(d)(iv) within five business days following receipt of the petition.
If necessary, additional time may be granted as agreed upon by both the
requester and the records custodian.
(b) 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;
2. the request is
designed or intended to harass, intimidate, or assist in the commission of a
crime;
3. the public records
request is made solely for a commercial purpose; or
4. the requester has failed to comply with
the provisions of 950 CMR 32.08(2).
(c) upon a determination by the Supervisor
that a violation has occurred, the Supervisor shall order timely and
appropriate relief.
(3)
Hearings and Conferences.
(a) the Supervisor may conduct a hearing
pursuant to the provisions of
801 CMR 1.00: Standard
Adjudicatory Rules of Practice and Procedure. The decision to hold a
hearing shall be solely in the discretion of the Supervisor.
1. said rules shall govern the conduct and
procedure of all hearings conducted pursuant to 950 CMR 32.08.
(b) the Supervisor may order conferences for
the purpose of clarifying and simplifying issues and otherwise facilitating or
expediting the investigation or proceeding. The decision to hold a conference
shall be solely in the discretion of the Supervisor.
(4)
In Camera Inspections and
Submissions of Data.
(a) the
Supervisor may require an inspection of the requested record(s) in camera
during any investigation or any proceeding initiated pursuant to 950 CMR
32.08.
(b) the Supervisor may
require the records access officer to produce other records and information
necessary to reach a determination pursuant to 950 CMR 32.08.
(c) the Supervisor does not maintain custody
of documents received from a records access officer submitted for an in camera
review. The documents submitted for an in camera review do not fall within the
definition of public records. M.G.L. c. 4, § 7(26).
(d) upon a determination of the public record
status of the documents, they are promptly returned to the custodian, and no
copies shall be retained by the Supervisor.
(e) any public record request made to the
Division for records being reviewed in camera would necessarily be denied, as
the office would not be the custodian of those records.
(f) attorney-client privileged records
voluntarily submitted to Supervisor:
1. a
records access officer may voluntarily submit documents to the Supervisor for
in camera review;
2. such
submission shall not waive any legally applicable privileges claimed by the
agency or municipality.
(5)
Custodial Indexing of
Records.
(a) the Supervisor may
require a records access officer or custodian to compile an index of the
requested records within the context of a public records appeal under 950 CMR
32.08.
(b) said index shall be a
public record and shall meet the following requirements:
1. the index shall be contained in one
document, complete in itself;
2.
the index shall adequately describe each withheld record or redaction from a
released record;
3. the index must
state the exemption or exemptions claimed for each withheld record or each
redaction of a record; and
4. the
descriptions of the withheld material and the exemption or exemptions claimed
for the withheld material must be sufficiently specific to permit the
Supervisor to make a reasoned judgment as to whether the material is
exempt.
(c) nothing in
950 CMR 32.08 shall preclude the Supervisor from employing alternative or
supplemental procedures to meet the particular circumstances of each
appeal.
Notes
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