Colman Herman v. Boston Water & Sewer Commission (SPR 20190090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 30, 2019 SPR19/0090 Dolores Randolph 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 (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 communications 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 appeals The requested record was the subject of a previous appeal. See SPRl 8/1391 Determination of the Supervisor of Records (October 2, 2018) and SPR18/1730 Determination of the Supervisor of Records (December 3, 2018). In my December 3rd determination, I directed the Commission to clarify whether it possesses additional records and provide Mr. Herman with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. Following the December 3rd determination, the Commission provided a response on December 14, 2018, which included additional responsive records. Unsatisfied with the Commission's response, Mr. Herman petitioned this office and this appeal, SPR19/0090, was opened as a result. 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). 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 SPR19/0090 Page2 January 30, 2019 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission's December Jl h response In its December 14, 2018 response, the Commission indicated that it provided additional documents after reviewing Mr. Herman's request with Counsel managing communication at the Commission. The Commission further stated that it "has no additional records or any internal communications between and among staff related to the hiring of a firm to investigate racial and gender discrimination at [the Commission]." In his appeal petition, Mr. Herman claims, "the [Commission] responded but it continued to fail to produce responsive internal communications between and among staff." Under the Public Records Law, the Commission is not required to create a record in response to a public records request. G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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. 4, § 7(26). Where the Commission has indicated it "has no additional records or any internal communications between and among staff related to the hiring of a firm to investigate racial and gender discrimination at [the Commission]," I find that Mr. Herman's appeal related to this request has been resolved. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman