Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20200457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

March 17, 2020 SPR20/0457 Valerie Connolly Administrative Services Division Secretary of the Commonwealth One Ashburton Place, Room 1710 Boston, MA 02108

Dear Ms. Connolly:

I have received the petition of Colman Herman appealing the response of the Secretary of the Commonwealth Administrative Services Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 6, 2020 Mr. Herman requested, “hard copies and electronic copies of any and all expense records related to the current public service announcement(s) dealing with voting in which Secretary Galvin is engaged.”

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, § 1OA(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, § 10(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.

Current Appeal

In a response dated February 24, 2020 the Division states, “[t]his office may possess certain responsive records, however, in order to properly respond to the request, please clarify which specific records you seek. In particular, please clarify what you mean by ‘any and all expense records,’ Please in addition, because Secretary Galvin appears in multiple ‘public service announcement(s) dealing with voting,’ it is unclear which specific public service

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

SPR20/0457 Valerie Connolly . Page 2 March 17, 2020

announcement you are referring to.” Unsatisfied by this response, Mr. Herman petitioned this office and as a result SPR20/0457 was opened.

In a follow-up letter dated February 24, 2020, Mr. Herman states: 1) “The voting PSA that is currently being shown on TV.

2) Any and all expenses means any and all expenses that went into the airing of the PSA, including, but not limited to, production costs, the writing of the script, media buys, personnel costs, post-production costs, and editing costs. It is my expectation that you will use your superior knowledge to see to that all expenses are included in the records you produce,”

Conclusion

Subsequent to the intervention by a staff member of the Public Record’s Division, I learned that the Division provided Mr. Herman a response dated March 9, 2020. In the March 9" email the Division states, “[p]lease find attached records responsive to your clarified request. No records have been withheld.”

In light of the Division’s March 9" letter, I will now consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Division’s response within ninety days. See 950 C.M.R. 32.08(1).

Upeun

Klteca. S. Murray 2

Supervisor of Records

cc: Colman Herman