Colman Herman v. Boston Water & Sewer Commission (SPR 20181475)

The Commonwealth of Massachusetts .William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 22, 2018 SPRlS/1475 Dolores Randolph Deputy Director of Communications Boston Water and Sewer Commission 980 Harrison A venue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (BWSC) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "copies of the complete files dealing with complaints filed against employees of the Boston Water and Sewer Commission for racial and gender discrimination. This is for the period January 1, 2010 to the present" (emphasis in original). BWSC responded on October 3, 2018 and Mr. Herman appealed. 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. Appeal In its October 3rd response you indicate "BWSC is in the process of compiling the documents in response to this request. Once the documents are compiled and available for copy, I will provide an estimate of the cost associated with filling this request." In his appeal petition 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

Dolores Randolph SPR18/1475 Page2 October 22, 2018 Mr. Herman asks this office to "please order BWSC to adhere to" deadlines associated with providing records under the Public Records Law. Subsequent to the opening of this appeal, BWSC provided an October 22, 2018 email to Mr. Herman indicating "[p] lease be advised that the documents that you have requested are in the process of being finalized for your review. Once they are available, I will contact you to set up a time for you to review as requested." It should be noted that Mr. Herman initially submitted his request on September 18, 2018. G. L. c. 66, § lO(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § lO(b)(vi). Whereas Mr. Herman's request was submitted on September 18, 2018, and BWSC has not provided responsive records, I find BWSC has not met its burden in responding to the request in accordance with G. L. c. 66, § lO(b)(vi). Conclusion Accordingly, BWSC is ordered to review the responsive records, redact where necessary, and provide Mr. Herman responsive records, or allow Mr. Herman an opportunity to inspect the records, in a manner consistent with this order, the Public Records Law, and its Regulations without delay. 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