Colman Herman v. Berkshire District Attorney's Office (SPR 20181247)

The Commonwealth of Massachusetts William Francis Calvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31,2018 SPR1811247 Joseph A. Pieropan, Esq. Assistant District Attorney- Records Access Officer Berkshire District Attorney's Office PO Box 1969 - 7 North Street Pittsfield, MA 0 1202-1 969 Dear Attorney Pieropan: I have received the petition from Colman Herman appealing the denial of the Berkshire District Attorney Office (DAO) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Herman made a public records request on July 8,2018 to the DAO for "hard copies and electronic copies of any and all communications related to the recent voice-mail message with the office of Berltshire Money Management." The DAO provided Mr. Herman with a response on July 25,2018 . In response to the DA07sJ uly 25th email, Mr. Herman appealed to this office on July 27,201 8. The DAO provided Mr. Herman with a response to his appeal on August 13,201 8 . After receiving the August 13 t11r esponse from the DAO, Mr. Herman requested an appeal to this office on August 17,2018. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, 5 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 1O (b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. G. L. c. 66, 5 lO(b)(iii). When withholding requested records, a records custodian is required to provide a response that identifies "any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, 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 August 3 1,201 8 including the specific exemption or exemptions upon which the withholding is based." G. L. c. 66, 5 lO(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a); 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). Appeal The DAO provided a supplemental response to Mr. Herman's request on August 30, 201 8. The DAO indicated that they conducted a search for records in response to Mr. Herman's August 1 7re~qu~est and described the methodology for conducting the search. The DAO asserted it conducted the search by "emailing all DAO staff members the exact copy of Mr. Herman's request" with additional clarification and instructed the staff members to follow-up with the Records Access Officer if they possessed any responsive records. The DAO noted that several staff members did seek further clarification but no staff member reported to the RAO that they possessed any 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, tj 1O (a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, 5 lO(b)(iii). Conclusion Based on the DAOysA ugust 3othr esponse, I find the DAO has met its burden in responding to this request. See G. L. c. 66, 5 lO(b)(ii)-(iii). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman