Colman Herman v. Office of the District Attorney - Berkshire District (SPR 20180410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10,2018 SPR18/410 Joseph A. Pieropan, Esq. Berkshire District Attorney's Office 7 North Street, PO Box 1969 Pittsfield, MA 0 1202 Dear Attorney Pieropan: I have received the petition of Colman Herman appealing the response of the Berkshire District Attorney's Office (Office) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "copies of any and all communications related to the appointment of Paul Caccaviello as district attorney of Berkshire County." The Office responded to his request, providing responsive records. 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, 5 10A(d); 950 C.M.R. 32.03(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Joseph A. Pieropan, Esq. Page 2 April 10, 20 18 The Office's Mnrch 28" responses On March 28h, the Office provided a response to Mr. Herman's request, which included responsive records. Subsequently, Mr. Herman responded asking whether the Office had withheld any records and whether the Office had searched "personal email accounts and text messages." The Office responded to Mr. Herman indicating "[tlhe answer to both questions is NO." Status as a public employee The Office is reminded that the definition of a "public record" in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, 5 7(26). This definition does not distinguish between records. Rather the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Further, a public employee has a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985). The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails and email addresses public records. At least one court has found that personal ernail addresses used for a public purpose by a government employee are a public record. See Mechling, v. City of Monroe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). Certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). 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, 5 10(a)(ii). Although the Office provided some responsive records, based on the Office's responses, together with Mr. Herman's petition for appeal, it is unclear whether the Office possesses additional responsive records. The Office must confirm whether it possesses additional records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). I understand a member of the Public Records Division staff contacted your office about this matter.

Joseph A. Pieropan, Esq. Page 3 April 10,2018 Order Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided 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, u Rebecca S. Murray Supervisor of Records cc: Colman Herman