Colman Herman v. Boston Water & Sewer Commission (SPR 20190987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/0987 Dolores Randolph Director of Communications Boston Water and Sewer Commission 980 Harrison Ave 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/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 "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 September 19, 2018 to the present." The BWSC denied his request claiming Exemptions (c) and (e) apply to withhold the requested information. The BWSC additionally requests that it be permitted to "postpone submitting its response," whereas this office's determination to an appeal related to a similar request has been referred to the Attorney General's Office for enforcement and remains pending. G. L. c. 4, § 7(26)(c), (e). See SPR19/0515 Determination of the Supervisor of Records (March 30, 2019; April 19, 2019). 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. 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 SPR19/0987 Page 2 June 4, 2019 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. Compliance with the requirements ofp roviding a response The BWSC's May 1] 1h response indicates that "the information sought in this request is the same information which is subject of Appeal SPRl 9/0515 which has been referred to the Attorney General's Office. As the requested information is the same, but for the timeframe, the Commission claims that the exemptions put forth in SPR19/0515, specifically M.G.L. c. 4, sec.7 (26) (c) and (e) are applicable in the current request."The BWSC asserts that "[s]ince the May 3, 2019 request is the same as the 2018 request and the Commission's response will be the same, it is logical to defer the Commission's response until a decision has been issued by the Attorney General in Appeal 19/0515." Although the BWSC provided a response to Mr. Herman's request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) 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

Dolores Randolph SPR19/0987 Page 3 June 4, 2019 public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1 OA and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b). Despite the BWSC's May 1 ]1h response, it remains unclear how the BWSC complied with the criteria required by an RAO in providing a response to a public records request. See id. Based on its response, it is uncertain whether the BWSC possesses records responsive to the request and how the claimed exemptions apply. 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, § lO(a)(ii). The burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Order Accordingly, the BWSC 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 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