Colman Herman v. Department of Revenue (SPR 20180696)

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

Rebecca S, Murray Supervisor of Records

May 18, 2018

SPR18/696 Roger H. Randall, Esq.

Tax Counsel, Litigation Bureau Department of Revenue

100 Cambridge Street, 7 Floor Boston, MA 02114-2582

Dear Attorney Randall:

I have received the petition of Colman Herman appealing the response of the Department of Revenue (Department) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested records related to a data breach that lasted from August 7, 2017, through January 23, 2018. Mr. Herman agreed to several voluntary time extensions, the last of which gave the Department until May 12" to provide a response. When the Department did not provide a response by this date, Mr. Herman petitioned this office, and this appeal was opened as a result.

Request for relief from obligation to respond to request

Subsequent to the opening of this appeal, this office received an email dated May 15, 2018, in which Attorney Randall requests “relief from this request.” The Department should be made aware that over 60 business days have passed since receipt of the initial request, well beyond the timeframe in which a custodian may petition the supervisor for an extension of time or relief from obligation to respond.

Under the updated Public Records Law and Regulations, Records Access Officers (RAOs) may petition the Supervisor of Records (Supervisor) with respect to assessing fees and extensions of time to provide public records. G. L. c. 66, §10(c), (d); 950 C.M.R. 32.06(4)(e); 950 C.M.R. 32.06(4). RAOs may request an extension from the Supervisor if more time is needed to provide records. Such a request for extension must occur within 20 business days of receipt of request or within 10 business days after receipt of a determination by the Supervisor that the requested record constitutes a public record. The Supervisor may grant an extension of 20 business days to an agency and 30 business days to a municipality, or longer depending on the circumstances. 950 C.M.R. 32.06(4)(e).

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

Roger H. Randall, Esq. SPR18/696 Page 2 May 18, 2018

If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. G. L. c. 66, § 10(c).

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 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.M.R. 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.

The Department has not met its burden to overcome the presumption that the requested records are public and therefore subject to disclosure.

Conclusion

Accordingly, the Department is ordered to provide a response to Mr. Herman without delay. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Department’s response within ninety days. See 950 C.MLR. 32.08(1).

Sincerely,

Mlucca Muon

Rebecca S. Murray

Supervisor of Records cc: Colman Herman