Herman, Colman v. Office of the State Treasurer and Receiver General (SPR 20150586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 30, 2015 SPRlS/586 Ms. Jameel Moore, Esq. Procurement Analyst/A ssociate General Counsel Office of the Treasurer and Receiver General One Ashburton Place, 1ih Floor Boston, MA 02108-1608 Dear Attorney Moore: I have received the petition of Colman Herman appealing the response of the Office of the State Treasurer (Treasury) to his June 20, 2015 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, by email Mr. Herman requested: [C]opies of any and all communications in the files of the treasury with regard to Treasurer Deborah Goldberg's husband's firm being awarded the right to sell state bonds. In a June 22, 2015 response you asked Mr. Herman to provide a date range for the responsive records. On that same day Mr. Herman responded, indicating his interest in obtaining responsive records from "[t]his year." In an email dated July 9, 2015 Mr. Herman requested a status update on his request. Later that same day you provided responsive records and other information. At no point in this response did you state whether the Treasury withheld or redacted any records, or whether all records had been provided. Response by Treasury and Mr. Herman's petition of appeal Upon receipt of the July 9 response by the Treasury, Mr. Herman queried on that same day as to whether all records had been provided, specifically asking three questions regarding the July 9 response: 1. Was anything withheld? 2. Please confirm that there were no communications in file to or from Treasurer Goldberg. 3. Please confirm that there was only one email in the file involving Treasurer Goldberg's press office. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Jameel Moore, Esq. SPR15/586 Page Two September 30, 2015 In a July 20, 2015 response, eleven days after the July 9 query and thirty days after the June 20 request, the Treasury responded: 1. No communications involving J.P. Morgan Securities LLC being awarded the right to sell state bonds was withheld. 2. There are no communications in file to or from Treasurer Goldberg regarding J.P. Morgan Securities LLC being awarded the right to sell state bonds. 3. There is more than one email involving the Treasury press office and they fall into Exemption (d) from the Public Records law and are privileged attorney-client communication. In Mr. Herman's July 22 petition to this office he appealed this response. Specifically, Mr. Herman states that only after he queried the Treasury did it cite an exemption with respect to withheld records. Second, Mr. Herman posits that the Treasury cited exemptions to justifY withholding records without any explanation whatsoever to support such withholding. Third, Mr. Herman posits the Treasury limited its response in a way unintended by his request. Failure to meet timeliness requirement in responding to public records request 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 the Treasury is dated June 22, two days after the June 20 request. However, this response was a request for clarification of the request, which was provided on June 22. The Treasury's substantive response was provided nineteen days after the request, on July 9, 2015, apparently after the reminder email sent by Mr. Herman on that same day. As indicated above, the Treasury only cited an exemption to the Public Records Law to justify withholding records after Mr. Herman's query, thirty days subsequent to his request for records. The Treasury is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Failure to meet burden to cite with specificity nature of exemption The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(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, § 1 0( c); see also District Attorney for the

Ms. Jameel Moore, Esq. SPR15/586 Page Three September 30, 2015 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In its July 20 response the Treasury cited Exemption (d) and the common law attorney client privilege to justify nondisclosure of email records involving the Treasury press office. In so doing the Treasury failed to state with any specificity the applicability of either the exemption or the privilege to justify complete nondisclosure of responsive records. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Failure to clearly state whether Treasury provided all responsive records In his June 20 request Mr. Herman sought copies of "communications in the files of the treasury with regard to Treasurer Deborah Goldberg's husband's firm being awarded the right to sell state bonds." In its response the Treasury explained that, after a bid process, "the Treasury and [The Executive Office of Administration and Finance] accepted jointly the lowest bid, which was from J.P. Morgan Securities, LLC, and awarded it the right to sell the state bonds." In response to the query as to whether any record was withheld, the Treasury replied "[no communication involving J.P. Morgan Securities LLC being awarded the right to sell state bonds was withheld." It is not clear from this response whether the Treasury had indeed provided all records responsive to Mr. Herman's request. Accordingly, I find the Treasury did not meet its burden of specificity to state whether all responsive records were provided. Failure to notify requester of right of appeal The Regulations state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). By withholding records the Treasury failed to meet this burden, in that it did not notify Mr. Herman of his right to administrative appeal. The Treasury is advised that it must notify requesters of this right of appeal when denying access to public records, as defined by the Public Records Law and the Regulations Order On August 21, 2015, an attorney on my staff telephoned and left you a detailed voice mail concerning this appeal and that a more detailed response must be provided to Mr. Herman. To date, this office has neither received a copy of any detailed response, nor has it been contacted concerning this appeal. I find that the Treasury has failed to meet its burden under the Public Records Law and has not overcome the presumption that the withheld records are public. The Treasury is hereby ordered, within ten (10) days ofthis order, to provide Mr. Herman with a

Ms. Jameel Moore, Esq. SPR15/586 Page Four September 30, 2015 detailed response to his June 20, 2015 request, made in compliance with the Public Records Law, the Regulations and this Order. If the Treasury maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Herman a written explanation, with specificity, how any such exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) ( here cost of complying with a request for public records is expected to exceed ten dollars ($1 .00), custodian of records shall provide written good faith estimate). Once the fees are paid Yl u st provide the responsive records. cc: Mr. Colman M. Herman