Colman Herman v. Office of the Comptroller (SPR 20181865)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 13, 2018 SPR18/1865 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) 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 the following records: 1) Records of all the expenses that Thomas Shack incurred in his capacity as state comptroller for the period November 1, 2017 to October 31, 2018. This includes, but is not limited to, the following. a) Expense reports, including back~up receipts b) Credit cards statements, including back-up receipts c) Automobile expense records d) Any and all other records that document Mr. Shack's expenses 2) The written employee reimbursement policy of the comptroller's office. The Comptroller responded on November 19, 2018 by providing electronic copies of responsive records. Mr. Herman appealed, indicating he also seeks hard copies of the records. 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, § IOA(d); 950 C.M.R. 32.03(4). "Public 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 SPRIS/1865 Page2 December 13, 2018 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, § IO(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 On November 19th the Comptroller provided Mr. Herman 2 emails that included several attachments of responsive records. On the same day Mr. Herman wrote to you saying "I had also asked for hard copies. Will you please send them?" Mr. Herman asks this office to" ... order Comptroller Shack to produce the responsive records in hard copy." G. L. c. 66, § 1O (a) provides the following in pertinent part: A records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without umeasonable delay permit inspection or furnish a copy of any public record .... ( emphasis added). G. L. c. 66, § 6A(d ) provides the following in pertinent part: The records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The records access officer shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format. The Comptroller provided Mr. Herman a copy of responsive records on November 19th under G. L. c. 66, § 1O (a). It does not appear the Comptroller is withholding records. Accordingly, I find the Comptroller has met its burden in responding to this request. See G. L. c. 66, § IO(a); G. L. c. 66, § 6A(d) ("[t]he records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form).

Katie Kendall SPR18/1865 Page 3 December 13, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman