Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20180054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

“Rebecca S. Murray Supervisor of Records

January 26, 2018 SPR18/054

Peter Wilson, Esq.

Division of Capital Asset Management and Maintenance One Ashburton Place, 15" Floor

Boston, MA 02108

Dear Attorney Wilson:

I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division) to a request for public records. G. L. c. 66 ~ § 10A; see also 950 C.MLR. 32.08(1). Specifically, on November 2, 2017, Mr. Herman requested to set up time to view any and all documents related to the Division’s efforts to get yacht and boat clubs to sign leases pursuant to Chapter 65 of the Acts of 2010. .

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Previous appeals

This request was the subject of previous appeals. See SPR17/1559 Determination of the Supervisor of Records (November 16, 2017); SPR17/1618 Determination of the Supervisor of Records (November 22, 2017); SPR17/1667 Determination of the Supervisor of Records (December 11, 2017); SPR17/1702 Determination of the Supervisor of Records (December 21, 2017). I closed SPR17/1702 with the proviso that the Division provide Mr. Herman with a

response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations.

Following the December 21“ determination, the Division provided a response on January 9, 2018 in which it continues to reiterate that it does not possess additional responsive records. Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR18/054, was opened as a result.

The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all

governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832¢ Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

Peter Wilson, Esq. SPR18/054 Page 2 January 26, 2018

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(b)(iv); 950 C.MLR. 32.06(3); see also Dist. 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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Division’s January gf" response

In its January 9" response, the Division indicated that “DCAMM provided all responsive documents on three separate occasions; by email on October 31, 2017, on a compact disc by mail on November 8, 2017, and hard copies by mail on November 21, 2017.” The Division also indicated that it “searched its records and archives for documents responsive to [Mr. Herman’s] October 10, 2017 request and complied with the appropriate records retention schedule.”

Additional responsive records

The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii) (written response must “identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency”). Although the Division claims it does not possess responsive records, Mr. Herman claims that the following records have not been provided: (1) communications from the clubs to the Division and other relevant internal communications; (2) a July 23, 2014 letter to an identified individual referenced in a letter dated August 18, 2014; (3) copies of letters dated December 20, 2016 from an identified individual from the Division to multiple boat and yacht clubs; (4) copies of letters dated April 30, 2012 from an identified individual from the Department of Conservation and Recreation (DCR) to four different yacht and boat clubs; and (5) a copy of a letter dated December 20, 2013 from an identified individual from DCR to Northeastern University.

Although the Division claims in its response that it searched its archives for documents and complied with the appropriate retention schedule, it remains unclear why the Division does not possess the records Mr. Herman claims should be in its custody. If the Division maintains that the responsive records no longer exist, it must explain in writing its justification under the Public Records Law and the Massachusetts Statewide Records Retention Schedule (Schedule) - for destroying the records. See G. L. c. 66, § 10(a)(i). I understand a Public Records Division staff attorney contacted your office about this appeal.

Peter Wilson, Esq. SPR18/054 Page 3 January 26, 2018

Order

Accordingly, the Division is hereby ordered to provide Mr. Herman with a response to the request, explaining whether it possesses or was once in possession of the records mentioned above and its justification under the Public Records Law and the Schedule for destroying the records, in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days, 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.

Sincerely,

Rebecca S. Murray

Supervisor of Records

cc: Colman Herman