Colman Herman v. Boston Water & Sewer Commission (SPR 20191316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2019 SPR19/1316 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, § 1O A; 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 Commission provided a supplemental response on June 27. 2019, which Mr. Herman appealed to this office. Tlte 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 SPRl 9/1316 Page 2 July 12, 2019 Existence of additional responsive records 11 In its June 2i response, the Commission explains that "[i]n addition to the business email provided in the May 24, 2019 response, the Commission possesses records which contain contact information for all the Commissioners of Boston Water and Sewer Commission. The Commission has withheld from disclosure records responsive to the request pursuant to G.L. c. 4, sec. 7 (26)( o) of the public records law. The exemption applies specifically to these records as the contact information contained in the records consists of personal home addresses and personal telephone numbers of these unelected employees of the Commission who volunteer their services. There are no further documents responsive to this request." In his appeal Mr. Herman asserts, "[w ]hen public officials -whether elected or appointed, whether paid or unpaid- do the work of the people using their personal email accounts the email addresses are public records." Mr. Herman indicates "[l]ikewise, when those officials do the work of the people from their homes, those physical addresses are public records." In camera inspection In order to facilitate a de.termination as to the applicability of the Exemption (o) claim made by the Commission to withhold responsive records, I request that the Commission provide this office an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Dolores Randolph SPRl 9/1316 Page 3 July 12, 2019 Order Accordingly, the Commission is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman