Colman Herman v. Office of the State Treasurer and Receiver General (SPR 20181461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2018 SPRlS/1461 Jameel Moore, Esq. Director of Procurement/A ssociate General Counsel Office of the State Treasurer and Receiver General One Ashburton Place, 121 h Floor Boston, MA 02108-1608 Dear Attorney Moore: I have received the petition of Colman Herman appealing the response of the Office of the State Treasurer and Receiver General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "the leases for any and all buildings that your agency occupies" and "the leases for any and all automobiles that are leased by your agency." The Office responded to his request by providing some responsive records and claiming to not be in possession of others. 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, § lOA(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, § lO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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

Jameel Moore, Esq. SPRIS/1461 Page 2 October 15, 2018 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). In its September 18th response, the Office states"[a ]ttached please find the leases for the Alcoholic Beverages Control Commission, the Massachusetts Clean Water Trust and the Massachusetts State Retirement Board. We do not have a copy of the lease for the space in Chelsea. We have reached out to the Division of Capital Asset Management and Maintenance to try to obtain a copy." In Mr. Herman's petition for appeal, he indicates that he is specifically seeking a copy of the lease for the referenced space in Chelsea. While this appeal was pending, this office was notified that the Office provided Mr. Herman with another response indicating it included a "copy of the Use and Occupancy Agreement ... for the space the Treasury occupies in Chelsea" on October 11, 2018. Whereas this matter was opened based upon the Office September 18th response and alleged failure to provide this particular responsive records, I will now consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Office's October 11th response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman