Colman Herman v. Division of Capital Asset Management (SPR 20180495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 20 18 SPR181495 Peter Wilson, Esq. Division of Capital Asset Management and Maintenance One Ashburton Place, 15 thF loor 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 (DivisiodDCAMM) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 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. Previous appeals This request was the subject of previous appeals. See SPR1711559 Determination of the Supervisor of Records (November 16,201 7); SPR171161 8 Determination of the Supervisor of Records (November 22,20 17); SPR1711667 Determination of the Supervisor of Records (December 11 ,201 7); SPR1711702 Determination of the Supervisor of Records (December 2 1, 20 17); SPRl81054 Determination of the Supervisor of Records (January 26,20 18); SPRl81187 Determination of the Supervisor of Records (February 2 1,2018 ); SPR181302 Determination of the Supervisor of Records (March 23,201 8). I closed SPR181302 by ordering the Division to provide Mr. Herman with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the March 23rd determination, the Division provided a response on April 10, 2018, which included one of the responsive records which was the subject of SPRl81302. The Division had claimed Exemption (d) of the Public Records Law to withhold both records. G. L. c. 4, 5 7(26)(d). Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR181495, was opened as a result. 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. Page 2 April 26,201 8 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 10(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, gooil 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. TIze Division 's April 1 o*" response In its April 10,2018 response, the Division indicated that it had enclosed a copy of a letter from an identified individual "of McGlynn & McGlynn to DCAMM dated July 23,2014 . . .," in accordance with the Supervisor's March 23rdo rder. In my March 23rdd etermination, I found that the Division had not established that the records at issue are "inter-agency or intra-agency memoranda or letters" as required under Exemption (d), because it had not demonstrated that the communications between the Clubs and the Division were only sent between governmental entities or consultants. See SPR181302 Determination of the Supervisor of Records (March 23,201 8). As such, I ordered the Division to provide Mr. Herman with responsive records. Although the Division, in its April 10" response, provided one of the responsive records, the July 23rdl etter, it however did not fully comply with my March 23rdd etermination. Thus, it remains unclear why responsive records pertaining to communications from the Clubs to the Division are being withheld in their entirety under Exemption (d) of the Public Records Law. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L, c. 66, 5 lO(b)(iv). Further, the Division must explain why the records cannot be redacted and non-exempt portions provided to Mr. Herman. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). I understand a Public Records Division staff attorney contacted your office about this appeal.

Peter Wilson, Esq. Page 3 April 26, 20 18 Order Accordingly, whereas the Division has not fully complied with my March 231d determination and has not satisfied its statutory and regulatory obligation under the Public Records Law, the Division is ordered to provided Mr. Herman with responsive records, 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.T he Division may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman