Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20200702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2020 SPR20/0702 Valerie Connolly Records Access Officer Administrative Services Division Secretary of the Commonwealth One Ashburton Place Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Colman Herman appealing the response of the 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 March 9, 2020, Mr. Herman requested “records for Secretary Galvin’s prior four PSA campaigns, i.e., any and all expenses that went into the airing of the four PSAs, including, but not limited to, production costs, the writing of the script, media buys, personnel costs, post-production costs, and editing costs. . . .” The Division requested clarification on March 17, 2020. On March 17th, Mr. Herman clarified that he is requesting copies of records of the “‘prior four campaigns,’ which were the four campaigns prior to the PSA for which you provided me with records.” Subsequently, on March 24, 2020, Mr. Herman expanded his request “. . . to include the same information for Secretary Galvin’s current PSA on the need to fill out the federal census.” The Division provided responses on March 24th, March 26th, and April 7th, requesting additional time to produce records. Unsatisfied with the Division’s responses, Mr. Herman petitioned this office and this appeal, SPR20/0702, was opened as a result. 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, § 10A(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 Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Valerie Connolly SPR20/0702 Page 2 May 12, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division’s responses There were communications between Mr. Herman and the Division. As a result, the Division provided the following responses. On March 24, 2020, the Division indicated that “. . . given the current global health circumstances, including the announcement from Governor Baker ordering non-essential workers not to report to work, this office requires additional time to produce records. Governor Baker’s order extends until April 7th or beyond. In light of the order, and the resulting inability of personnel to access potentially responsive records, this office requires additional time beyond the 15 business days referenced in G. L. c. 66, §10(b)(vi). . . .” The Division provided another response on March 26, 2020, requesting “. . . an extension at least until April 7th. [The Division] will provide an update at that time that takes into account the circumstances.” Subsequently, the Division provided another response on April 7, 2020, requesting an extension until May 4th, based on the extension of the Governor’s order. The Division, however, stated that “. . . to the extent feasible, [it] hope[s] to provide records on a rolling basis.” It is my understanding that the Division intends on providing a supplemental response to Mr. Herman. Accordingly, the Division is ordered to provide Mr. Herman with a response to his request in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Division’s response within ninety days. See 950 C.M.R. 32.08(1).

Valerie Connolly SPR20/0702 Page 3 May 12, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman