Colman Herman v. Boston Water & Sewer Commission (SPR 20181730)

The Common,vealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2018 SPRlS/1730 Dolores Randolph Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Herman requested "hard copies and electronic copies of any and all c01mnunications related to the hiring of a firm to investigate racial and gender discrimination at the Boston Water and Sewer Commission." Mr. Herman mentioned that "[c ] ommunications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/1391 Determination of the Supervisor of Records (October 2, 2018). In my October 2nd determination, I ordered the Commission to provide Mr. Herman with a further response and clarification, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the October 2nd determination, the Commission provided a response on November 9, 2018, which included certain responsive records. The Commission indicated that portions of the responsive records were redacted pursuant to Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Commission's response, Mr. Herman petitioned this office and this appeal, SPRl 8/1730, was opened as a result. The Public Records Lmv The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1O A( 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). 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 SPR18/1730 Page2 December 3, 2018 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, § I O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c ustodian 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Co111111issio11 's November gt" response In its November 9, 2018 response, the Commission indicated that it is providing Mr. Herman with the following records: 1) "Conditioning Leaders Submission dated October 15, 2018;" 2) "Contract for Professional Service By and Between The Boston Water and Sewer Commission and Conditioning Leaders RFP 18-20l-01 O;" 3) "Amplified Insurance Pmtners Submission-Organizational Culture Assessment Proposal (#18-201-010);" 4) "IBIS Consulting Group, Inc. Submission;" 5) "Letter to Madeline McNeely dated October 29, 2018;" 6) "Letter to Lauren Brenner dated November I, 2018;"and 7) "Letter to Tom Bourdon dated November 1, 2018." The Commission indicated that the only redactions made were Federal identification Numbers, under Exemption (c). Additional responsive records In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requestor in obtaining the desired information. 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, § IO(a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii). In his petition for appeal, Mr. Herman claims that his request stated that"' [c Jommunications include but are not limited to, emails, letters, memoranda, faxes, and notes .... In that regard [the Commission] failed to produce any responsive internal communications between and among staff."' As such, the Commission must clarify whether it possesses additional records, specifically, "any internal communications between and among staff," that are responsive to Mr. Herman's request. I understand a Public Records Division staff attorney contacted your office about this appeal but unable to reach you prior to the issuance of this decision. Co11clusio11 Accordingly, the Commission is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Dolores Randolph SPRIS/1730 Page 3 December 3, 2018 Regulations within ten business days. 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