Colman M. Herman v. Boston Water & Sewer Commission (SPR 20191058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2019 SPR19/1058 Dolores Randolph Director of Communications 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 & 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" ... any and all records that contain contact information for all the commissioners of the Boston Water and Sewer Commission." The Commission responded on May 24, 2019 by providing a business email address and indicating it does not possess other business email or physical addresses. The Commission also cited Exemption (o) of the Public Records Law. G. L. c. 4, § 7(26)(0). Mr. Herman appealed the response to this office on May 28, 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 SPR19/1058 Page 2 June 11, 2019 Existence of additional responsive records In its May 24th response, the Commission explains that "[t]he commissioners of Boston Water and Sewer Commission are unelected employees of the commission. As special municipal employees records [sic], if any, that contain the personal email addresses and personal physical addresses of all the commissioners have been withheld in accordance with G.L. c. 4, sec. 7 (26) (o ) because this information would include the home addresses and personal email addresses of these individuals." The Commission argues that "[t]his exemption would include any records that contain contact information for the commissioners such as home address, personal email address and home telephone number." In his request Mr. Herman suggested "[s]ome or all of the above information must be in your files in order for the commission to be able to communicate with the commissioners." In his May 28th appeal he indicates "[n ]ote the term 'if any' above. In other words, Ms. Randolph fails to state whether or not any responsive records actually do exist. Accordingly, please order her to do so." Although the Commission cites Exemption ( o ), it is unclear whether it possesses records to which Exemption (o ) applies. In light of the issues raised in Mr. Herman's appeal regarding the existence of responsive records, and despite the Commission's responses, I find it is unclear whether the Commission possesses additional responsive records concerning contact information of the Commissioners. 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), (b)(ii). Conclusion Accordingly, the Commission is ordered to provide Mr. Herman with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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