Colman Herman v. Boston Planning & Development Agency (SPR 20191089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12, 2019 SPR19/1089 Teresa Polhemus Executive Director/Secretary Boston Planning & Development Agency One City Hall Square Boston, MA 02201 Dear Ms. Polhemus: I have received the petition of Colman Herman appealing the response of the Boston Planning & Development Agency (BPDA) 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 notes taken during a meeting between the BPDA and the Boston Red Sox. The BPDA provided a response to Mr. Herman on May 24, 2019 citing Exemption (e). Mr. Herman appealed the response to this office on May 30, 2019 asserting the BPDA was required to indicate"whether or not any responsive notes actually do exist, and if they do exist, to identify them." 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, § 1 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) (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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Ms. Teresa Polhemus SPR19/1089 Page 2 June 12, 2019 Exemption (e) Exemption ( e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption ( e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. In its May 24th response the BPDA asserts "[a]ny notes taken were personal in nature and taken in notebooks and not shared with other employees. These notes are not part of any file. These notes are exempted from the public records law under exemption e." Mr. Herman comments in his May 30th appeal that the "BPDA must state whether or not any notes actually do exist in order to properly claim an exemption." In an email response sent on May 31, 2019 the BPDA clarifies that "there do exist personal notes taken in notebooks and not shared with anyone." In light of the BPDA' s May 31st response indicating that there are responsive personal notes which were not shared, I find the BPDA has met its burden to withhold the requested records under Exemption (e). G. L. c. 4, § 7 (26)(e). Conclusion Based on the BPDA's responses, I find the BPDA has met its burden in responding to Mr. Herman's appeal request. Accordingly, I will consider this appeal closed.

Ms. Teresa Polhemus SPRI9/1089 Page 3 June 12, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman