Colman Herman v. Massachusetts Emergency Management Agency (SPR 20201089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2020 SPR20/1089 Ann McCarthy, Esq. Massachusetts Emergency Management Agency 400 Worcester Road Framingham, MA 01702-5399 Dear Attorney McCarthy: I have received the petition of Colman Herman appealing the nonresponse of the Emergency Management Agency (Agency) to his requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested “any and all transaction records, purchase orders, invoices, receipts, contracts, agreements, and/or related records related to the Commonwealth of Massachusetts’ purchase this year of about 1.7 million masks that were flown from China to Massachusetts.” Claiming to not yet have received a response, Mr. Herman petitioned this office and this appeal 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). 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. Conclusion Despite being notified of the opening of this appeal and communication from a staff member of the Public Records Division, it remains unclear whether the Agency has provided a 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

Ann McCarthy, Esq. SPR20/1089 Page 2 July 20, 2020 response. As such, the Agency is ordered to provide Mr. Herman with a written response. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order 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 Agency’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman