Colman M. Herman v. Massachusetts Division of Insurance (SPR 20191914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 2, 2018 SPR19/1914 Mindy A. Merow Rubin, Esq. Counsel to the Commissioner and RAO Massachusetts Division of Insurance 1000 Washington Street, Suite 810 Boston, Massachusetts 02118-6200 Dear Attorney Rubin: I have received the petition of Colman Heiman appealing the response of the Massachusetts Division oflnsurance (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested records concerning the merit rating board. The Division provided a response to Mr. Herman on September 16, 2019 and provided him with a thumb drive containing the records. Mr. Herman appealed to this office on September 19, 2019 requesting "a thumb drive that works and with files that I can open." 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, § 10( 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, § 1O (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

Mindy A. Merow Rubin, Esq. SPR19/1914 Page 2 October 2, 2019 burden of establishing the applicability of an exemption). A records access officer (RAO) shall coordinate a response to requests for access to public records and shall facilitate the resolution of such requests by the timely and thorough production of public records. Each RAO shall assist persons seeking public records to identify the records sought. G. L. c. 66, § 6A (b )(1 ). The RAO shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format. The RAO shall not be required to create a new public record in order to comply with a request, provided that furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. G. L. c. 66, § 6A( d); see also 950 C.M.R. 32.08(1)(f). The RAO shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. G. L. c. 66, § 6A ( d). It is my understanding that Mr. Herman is having difficulty opening the electronically formatted records provided to him. This office encourages the Division and Mr. Herman to coordinate fmiher to enable the Division to provide the requested public records in an accessible manner to Mr. Herman. G. L. c 66, § IO(a)(i) (the request must reasonably describe the public record sought). 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, § 10( a)(ii). Order Accordingly, the Division is ordered to review the requests and provide a response to Mr. Herman, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. This administrative appeal is now closed. 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