Colman Herman v. Executive Office of Elder Affairs (SPR 20160463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 14, 2016 SPR16/463 Ms. Siobhan Coyle Deputy Legal Counsel Executive Office of Elder Affairs The Commonwealth of Massachusetts One Ashburton Place, 5th Floor Boston, MA 02108 Dear Attorney Coyle: I have received the petition of Colman Herman appealing the response of the Executive Office of Elder Affairs (EHS) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested records associated with assisted living incident reports. EHS provided records with portions withheld and Mr. Herman appealed. 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, § 10( 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). 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. After several email discussions between EHS Director of Communications Martha Waldron and Mr. Herman it was agreed that EHS would provide a data extract with responsive information. EHS provided a fee estimate, which was paid by Mr. Herman. EHS provided the responsive information; however EHS withheld portions of the record that Mr. Herman and Ms. Waldron previously determined were responsive. EHS failed to cite any exemption to justify withholding this information. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Siobhan Coyle SPR16/463 Page2 July 14, 2016 In a July 14 telephone conversation I explained to Ms. Waldron that a records custodian must cite an exemption to withhold records. I further explained that I would issue an administrative order today with respect to Mr. Herman's request. Order I find EHS has failed to respond to a request for public records. Accordingly, EHS is hereby ordered to review Mr. Herman's request and provide a revised response within ten (10) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. ~~ Shawn A. Williams Supervisor of Records cc: Mr. Colman Herman Ms. Martha Waldron