Colman Herman v. Massachusetts Commission Against Discrimination (SPR 20191798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor qfR ecord~ September 18, 2019 SPR19/1798 Theresa Lepore Deputy Clerk of the Commission Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, 6th Floor Boston, MA 02108 Dear Ms. Lepore: I have received the petition of Colman Hennan appealing the response of the Massachusetts Commission Against Discrimination (MCAD) a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Herman sent a request to MCAD seeking hotel bills. MCAD provided a response to Mr. Hennan on September 3, 2019. In an email on September 4, 2019, Mr. Herman appealed MCAD's response to this office. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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) (written response must "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 ... "); 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 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. Theresa Lepore SPR19/l 798 Pg. 2 September 18, 2019 burden of establishing the applicability of an exemption). MCAD's Records Access Officer, sent an email on September 3, 2019 in response to Mr. Herman's request stating "[i]n our July 15, 2019 response to your July 1, 2019 records requests we provided you with all available and necessary back up documentation for expenditures on the agency's P-Card. If a hotel reservation is made via the internet, the reservation confirmation, which accurately represents the total cost of the reservation, is attached to the billing statement in lieu of a hotel bill. The agency reconciles Bank of America Statements each month, prior to submitting payment, to ensure total charges reflect actual charges made by the agency, including the reconciliation of hotel reservations." Mr. Herman contends a "reservation document is not a hotel bill". Mr. Herman goes on to say that it is "not clear whether the hotel bills exist and MCAD is refusing to produce them, or whether the hotel bills were discarded prematurely." It is unclear ifMCAD possesses any records responsive to Mr. Hennan's request. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). Specifically, MCAD must explain whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 1O (a)(ii), (b )(ii). If such records were destroyed, MCAD must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly, MCAD 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