Herman, Colman v. Department of Public Safety (SPR 20140469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 26, 2014 SPR14/469 Ms. Caroline P. Torrisi, Esq. Department of Public Safety One Ashburton Place, Room 1301 Boston, MA 02108 Dear Attorney Torrisi: I have received the petition of Colman M. Herman appealing the response of the Department of Public Safety (DPS) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of expense reports, including credit card statements and back-up receipts for DPS Commissioner Thomas G. Gatzunis. Records were provided in response to this request. Subsequent to receiving the records, Mr. Herman inquired as to whether any records were withheld or redacted. He was later informed by a member of your staffthat portions of records were redacted pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). No explanation was provided as to the type of information that was redacted; merely, the response cited the language of the exemption. Mr. Herman later wrote to the DPS Communications Director requesting clarification of this exemption claim and received no response. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The initial response by DPS failed to comply with this portion of the law in that DPS provided redacted records with no explanation as to the redaction. But for the request by Mr. Herman it appears that no exemption claim would have been made. I say it appears because while Mr. Herman aided in the administration of this appeal by providing a chronology of events, he did not provide copies of the actual correspondence to this office. Mr. Herman is advised that a request for appeals to the Supervisor of Records shall OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Caroline P. Torrisi, Esq. SPR14/469 Page Two September 25, 2014 include a copy of the letter by which the request was made, and as available, a copy of the letter by which the custodian responded. See 950 C.M.R. 32.08(2). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Department did not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations the Department must meet this burden. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. The Department has yet to meet its burden in explaining what records were redacted, and the specific reasoning behind those redactions. Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Herman with the unredacted portions of the requested records. If the Department maintains that portions of the responsive records are exempt it must, within thirty (30) days provide to Mr. Herman and this office an explanation, with specificity, how a particular exemption applies to each record. An acknowledgment will be issued, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Colman M. Herman