Colman Herman v. Executive Office of Housing & Economic Development (SPR 20192126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor of Records October 31, 2019 SPR19/2126 Jonathan M. Cosco, Esq. General Counsel Executive Office of Housing and Economic Development One Ashbmion Place, 21st Floor Boston, MA 02114 Dear Attorney Cosco: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing and Economic Development(EOHED) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested "hard copies and electronic copies of any and all communications related to [identified individuals] signing a 'Severance Agreement and Release' dated February 20, 2019." Previous appeal The requested records were the subject of a previous appeal. See SPR19/2126 Determination of the Supervisor of Records (Supervisor) (September 23, 2019). In my September 23rd determination, I found that EOHED had met its burden to withhold ce1iain records under the attorney-client privilege. Further, I also directed EOHED to clarify whether it had destroyed certain records, and if so, demonstrate whether it followed proper records retention protocol. Subsequently, EOHED provided a response on October 16, 2019. Unsatisfied with EOHED's response, Mr. Herman petitioned this office and this appeal, SPR19/2126, was opened as a result. While this appeal was pending, EOHED provided a supplemental response dated October 29, 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). One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jonathan M. Cosco, Esq. SPR19/2126 Page 2 October 31, 2019 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 pmiion 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. EOHED'S October 161 response " In its October 16, 2019 response, EOHED asserts'that it" ... follows applicable records retention protocols with respect to the text messages on employee cell phones. Because of the nature of text message communications generally, and EOHED policy concerning the use of text messaging for official business, it is unlikely that a text message sent by a state employee is a record that must be preserved under the public records law." EOHED states that "[t]he public records law, to begin with, does not require the disclosure of 'materials prepared by an employee of the commonwealth which are personal to him [o r her] and not maintained as part of the files of the governmental unit.' G.L. c. 4, § 7(26)( e ). Similarly, the laws and protocols applicable to the retention of public documents do not require the retention ofrecords that are limited to 'administrative use,' such as communications that relate to the scheduling of meetings .... " EOHED posits that as stated in its previous response," ... EOHED employees who receive a state-issued cellphone are informed that texts sent from such devices are to be limited to messages related to scheduling or other matters that fall within the meaning of' administrative use."' EOHED asserts that "[t]o our knowledge, EOHED does not have in its possession or control any text message that is responsive to [Mr. Herman's] request, and to our knowledge no EOHED employee sent a responsive text that has since been deleted. Likewise, we have no reason to believe that text messages that would qualify as public records required to be maintained under the Electronic Records Management Guidelines were destroyed in violation of the records retention schedule when phones assigned to former employees were turned in." EOHED concludes that where the Supervisor's September 23rd determination directs it to '" ... institute safeguard to ensure that all records are retained in accordance with applicable law as well the retention schedules[,]' ... [it] will review its acceptable use policy and other policies and practices with respect to the production and retention of electronic records, to ensure that the secretariat's employees are complying with applicable laws and following best practices with respect to such matters."

Jonathan M. Cosco, Esq. SPR19/2126 Page 3 October 31, 2019 EOHED 's October 291 supplemental response " In its October 29, 2019 supplemental response, EOHED contends that it" ... already has searched for and turned over to Mr. Herman all existing records that are responsive to his request, except for certain records withheld under the attorney-client privilege." EOHED explains that this appeal" ... focuses on EOHED's failure to turn over text messages on state issued phones that were turned in by former employees, and later re-issued to other employees. To the extent that Mr. Herman is seeking to have [EOHED] turn over records that do not currently exist, and may never have existed, we simply point out, as [The Supervisor's] own prior order states, 'the duty to comply with requests for records extends to those records that exist and are in the possession, custodian or control of the custodian ofr ecords at the time of the request' (emphasis added)." EOHED states that it has "fulfilled that obligation [and] ... cannot turn over records that do not exist. . . ." In his appeal petition, Mr. Herman claims that the EOHED's arguments should be rejected and provides various reasons to suppmi his claim. However, upon review of EOHED's responses, it is unclear what the basis of Mr. Herman's appeal is. Accordingly, Mr. Herman must clarify this matter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman