Colman Herman v. Executive Office of Housing & Economic Development (SPR 20181405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2018 SPRlS/1405 Jonathan Cosco, Esq. Senior Deputy General Counsel Executive Office of Housing and Economic Development One Ashburton Place, 21st Floor Boston, MA 02114 Dear Attorney Cosco: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing and Economic Development (EOHED) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Herman requested a copy of any and all: 1. Disclosures Francois-Laurent Nivaud has made to his appointing authority and the authority's responses; and 2. Disclosures Mr. Nivaud has made to the state ethics commission and the commission's responses. In the September 13, 2018 response, you stated, "[w]e are still in the process of collecting the responsive documents and would respectfully request another 3 business days to respond. We expect to have a full response to you on or before Monday, September 17. We do not expect to impose a fee for staff time or copying." The same day, Mr. Herman agreed to the 3 business day extension of September 1i h. When Mr. Herman did not receive the records, on September 2ot\ he petitioned the Supervisor of Records and this appeal was opened. Appeal Subsequent to the opening of this appeal, in a September 21, 2018 email to Mr. Herman and this office, the EOHED sought additional time to provide all the responsive records in one batch, and no later than Friday, October 5th. In its September 21st email, the EOHED explained, "[g]iven our diligent efforts to date, I respectfully request an additional 10 business days (i.e., until October 5) to complete our search and provide the responsive documents." You further stated, "[o]ur response has been delayed, in part, by the recent departure of the state employee 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

Jonathan M. Cosco, Esq. SPR18/1405 Page 2 October 4, 2018 who is most likely to have been the custodian ofresponsive documents." Both in your September 21st email and in an October 1, 2018 telephone conversation with a Public Records Division staff attorney, you indicated that the EOHED is working diligently with staff at the Massachusetts Office of Tourism and Travel and the staff at the Executive Office of Technology Services and others to identify responsive documents. A records access officer shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4. See G. L. c. 66, § lO(a). In an October 1, 2018 telephone conversation with a Public Records Division staff attorney, the EOHED was asked to provide records on a rolling basis until the request is fulfilled on October 5th, which is the latest date the EOHED has stated it will provide all the responsive records to Mr. Herman. It is my understanding that the EOHED has agreed to provide any records that it has already compiled, and will fulfill the balance of the request by close of day on October 5, 2018. Conclusion Accordingly, given the EOHED indicated it would provide Mr. Herman with records on a rolling basis, the EOHED is ordered to provide the balance of the records by October 5, 2018, in a manner consistent with this order, the Public Records Law and its Regulations. 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