Colman Herman v. Office of the Comptroller (SPR 20181539)

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

Rebecca S. Murray Supervisor of Records

November 2, 2018 SPR18/1539

Katie Kendall

Director of Special Projects Office of the State Comptroller One Ashburton Place, 9th Floor Boston, MA 02108

Dear Ms. Kendall:

I have received the petition of Colman Herman appealing the response of the Office of the Comptroller (Comptroller/CTR) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, on October 1, 2018 Mr. Herman requested “hard copies and electronic copies of original source (native) expense data submitted by the office of Gov. Charlie Baker to the comptroller for the period October 1, 2017 to September 30, 2018.” The Comptroller responded on October 17, 2018 by indicating “[t]he Office of the Comptroller is not in possession of the records you have requested.” Unsatisfied with this response, Mr. Herman appealed to this office.

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.

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

Katie Kendall SPR18/1539 Page 2 November 2, 2018

Previous appeals

This request is similar to a request that was the subject of previous appeals. See SPR18/1209 Determination of the Supervisor of Records (August 27, 2018); SPR18/1333 Determination of the Supervisor of Records (September 18, 2018). The request at issue in these previous appeals sought “hard copies and electronic copies of records that detail the expenses that Charlie Baker incurred in his capacity as governor for the period August 1, 2017 to July 31, 2018. This includes, but is not limited to, items such transpor|t]ation (e.g., airline, train, ride- hailing), lodging, meals and entertainment.”

In my September 18" determination I found that the Comptroller “must clarify whether it possesses any records responsive to Mr. Herman’s request for ‘hard copies and electronic copies of records that detail the expenses that Charlie Baker incurred in his capacity as governor for the period August 1, 2017 to July 31, 2018,’ such as a pay stub or other similar record that describes any reimbursements for expenses incurred.” I also found the Comptroller must “confirm whether it possesses, as Mr. Herman describes, records that detail individual expenses of Governor Baker in the ‘original source (native) data that was submitted by the governor’s office.’”

The Comptroller provided a response on October 1, 2018 that indicates “[p]ursuant to the request from the Supervisor of Public Records, the Office of the Comptroller does not have responsive records. The Office of the Comptroller confirms that we do not possess ‘hard copies and electronic copies of records that detail the expenses that Charlie Baker incurred in his capacity as governor for the period August 1, 2017 to July 31, 2018.’” The Comptroller also confirms that “it does not possess records that detail individual expenses of Governor Baker in the ‘original source (native) data that was submitted by the governor’s office.’”

You also assert “[i]t should further be understood, that agencies and departments pursuant to Comptroller policy are responsible for entering reimbursements due their employees and for retaining the source documentation. These are records that in no instance would be forwarded to, filed at, or reviewed by the Office of the Comptroller.” It should be noted that in previous responses dated August 10, 2018 and August 31, 2018, the Comptroller provided information regarding its Records Management Policy, how data is entered into the state payroll system or the state accounting system under its Department Head Signature Authorization Policy, as well as relevant object code information. In the August 10" response you indicate “Tulnfortunately, other than the summary information posted on CTHRU this office has no access to any more details regarding the reimbursement.”

Current appeal

As described above, on October 1 Mr. Herman requested “hard copies and electronic copies of original source (native) expense data submitted by the office of Gov. Charlie Baker to the comptroller for the period October 1, 2017 to September 30, 2018.” The Comptroller responded on October 17" by asserting that it is “not in possession of the records you have requested.” In his appeal petition Mr. Herman notes “[t]he comptroller must get the responsive

Katie Kendall SPR18/1539 Page 3 November 2, 2018

records from the governor’s office somehow, and thus he must use his ‘superior knowledge’ to

aid me in accessing the records I am seeking. Accordingly, please order Comptroller Shack to do so.”

Under the Public Records Law, the Comptroller is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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, § 10(a)(ii), (b)(ii)-(iii). In addition, G. L. c. 66, § 6A(d) provides in pertinent part “[i]f the public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access

officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website.”

Accordingly, in light of the Comptroller’s responses described above, I find it has met its burden in responding to this request. See G. L. c. 66, § 6A(d).

aleceo

Rebecca S. folecca Supervisor of Records

cc: Colman Herman