Colman Herman v. Department of Revenue (SPR 20200047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2020 SPR20/0047 Roger Randall, Esq .. Counsel to the Commissioner Department of Revenue . 100 Cambridge Street, 7th Floor Boston, MA 02114-2582 Dear Attorney Randall: I have received the petition of Colman Herman appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 24, 2019, Mr. Herman requested: [H]ard copies and electronic copies of any and all communications related to the state auditor's 2019 report on information security at the department of revenue. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Please be aware that if any related communications were done through personal email accounts, text messaging, etc., these vehicles must be searched for responsive public records. On January 8, 2020, the Department provided a response indicating that Mr. Herman's request does not reasonably describe the records sought and advises him to modify his request. Unsatisfied with the Department's response, Mr. Herman petitioned this office and this appeal, SPR20/004 7, was opened as a result. Tlie 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 statutor.y 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); Dist. 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

Roger Randall, Esq. SPR20/0047 Page 2 January 23, 2020 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte Department's January 8111 response In its January 8, 2020 response, the Depa1iment asserts that it is" ... not obligated to respond to your request, because you have not 'reasonably described the public records sought.' G.L. chapter 66, § 10( a)(i). Your wording 'all communications related to the state auditor's 2019 report on information security at the department of revenue' (emphasis added here) is undefined." The Department further states "[i]n another case involving the public records law (docket# l 784-CV-2087), the Honorable Robert B. Gordon of Suffolk Superior Court wrote in his January 23, 2019, Order that the phrase 'pertaining to' does not satisfy the public-records statute's requirement for a 'reasonable description.' The requestor 'must identify the documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for ... ' Non-lawyer employees are not required to 'make fine judgments about what documents are and are not sufficiently 'related' to the category of materials requested ... [This] will not satisfy the statutory standard."' The Department contends that" ... unless and until [Mr. Herman] specif[ies] particularly what document(s) [he] seek[s], [he] ha[s] not satisfied the statute and [the Department is] not obligated to respond to [Mr. Herman's] request." The Department also noted that it would provide a fee estimate after Mr. Herman modifies his request. Subsequent to the opening of this appeal, the Depaiiment provided a supplemental response. There were also several communications between the Department and Mr. Herman regarding his request. On January 9, 2020, the Department provided a supplemental response reiterating its previous positions and requesting the denial of Mr. Herman's appeal. Following the Department's response, Mr. Herman modified his request on January 9, 2020. In his modified request, Mr. Herman indicated that the Department search the files of 14 identified individuals. Mr. Herman also provided 8 search terms and the time period, December 1, 2019 to December 31, 2019. On January 10, 2020, the Department responded to Mr. Herman's request by suggesting certain search terms to enable it to search for responsive records more efficiently and affordably. Mr. Herman accepted the Depaiiment's proposal. Subsequently, on January 20, 2020, the Department provided a fee estimate.

Roger Randall, Esq. SPR20/0047 Page 3 January 23, 2020 Conclusion Accordingly, where the Department has provided a fee estimate based on Mr. Herman's modified request, I will consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ I T ~ Supervisor of Records cc: Colman Herman