Herman, Colman v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20150184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 20, 2015 SPRlS/184 Ms. Lorraine A. G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General One Ashburton Place, 19th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Colman M. Herman appealing the response ofthe Office ofthe Attorney General (AGO) to his request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, requested records related to a Department of Conservation and Recreation Matter. In response you denied this request, stating that any responsive records would be withheld under the common law attorney-client privilege. Suffolk Const. Co., Inc. V. Division of Capital Asset Management, 449 Mass. 444 (2007). Mr. Herman does not appeal the application of the attorney client privilege; Mr. Herman's appeal relates solely to the failure ofthe AGO to advise him of his administrative remedies under .the Public Records Law. In particular, Mr. Herman requested this office "remind" the AGO of its "obligation to inform citizens of their right of appeal." The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(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 town 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, § lO(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lorraine A. G. Tarrow, Esq. SPR15/184 Page Two August 20, 2015 Section 32.05 of the Public Records Access Regulations (Regulations) state: (1) Access to Public Records. A custodian of a public record shall permit all public records within his or her custody to be inspected or copied by any person during regular business hours. In governmental entities which do not have daily business hours, a written notice shall be posted in a conspicuous location listing the name, position, address and telephone number of the person to be contacted to obtain access to public records. (2) Promptness of Access. Every governmental entity shall maintain procedures that will allow at reasonable times and without unreasonable delay access to public records in its custody to all persons requesting public records. Each custodian shall comply with a request as soon as practicable and within ten days. (3) Requests for Public Records. Requests for public records may be oral or written. Written requests may be submitted in person or by mail. It is recommended that a record requester make a written request where there is substantial doubt as to whether the records requested are public, or if an appeal pursuant to 950 CMR 32.08(2) is contemplated. A custodian shall not require written requests merely to delay production. (4 ) Description of Requested Records. Any person seeking access to a public record or any portion thereof shall provide a reasonable description of the requested record to the custodian so that he or she can identify and locate it promptly. A person shall not be required to make a personal inspection of the record prior to receiving a copy of it. A custodian's superior knowledge of the contents of a governmental entity's files shall be used to assist in promptly complying with the request. (5) Prohibition of Custodial Requests for Background Information. Except when the requested records concern information which may be exempt from disclosure pursuant to M.G.L. c. 4, § 7, clause Twenty-sixth(n), A custodian may not require the disclosure of the reasons for which a requester seeks access to or a copy of a public record. A custodian shall not require proof of the requester's identity prior to complying with requests for copies of public records.

Ms. Lorraine A. G. Tarrow, Esq. SPR15/184 Page Three August 20, 2015 (6) Copies. Upon request, a person at his or her election, shall be entitled to receive in hand or by mail one copy of a public record or any desired portion of a public record upon payment of a reasonable fee as determined by 950 CMR 32.06 950 CMR 32.05(1)-(6) With respect to denial of access, the Regulations further state: Where a custodian's response to a record request made pursuant to 950 CMR 32.05(3) is that any record or portion of it is not public, the custodian, within ten days of the request for access, shall in writing set forth the reasons for such denial. The denial shall specifically include the exemption or exemptions in the definition of public records upon which the denial is based. When exemption (a) ofM.G.L. c. 4, § 7, clause Twenty-sixth is relied upon the custodian shall cite the operational statute(s). Failure to make a written response within ten days to any request for access shall be deemed a denial of the request. The custodian shall advise the person denied access of his or her remedies under 950 CMR 32.00 and M.G.L. c. 66, § IO(b). 950 CMR 32.08(1) In telephone conversations with this office you stated your awareness of this obligation. Accordingly, whereas Mr. Herman's appeal was based upon a request to inform records custodians such as the AGO of the obligations with respect to a citizen right of appeal, I will consider this administrative appeal closed. cc: Mr. Colman M. Herman