Colman Herman v. Department of Veteran Services (SPR 20201095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1095 Stuart Ivimey, Esq. General Counsel Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Colman Herman appealing the response of the Department of Veterans’ Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 13, 2020, Mr. Herman requested the following records: 1) Records of all the expenses Francisco Urena incurred in his capacity as secretary of the Department of Veterans’ Services for the period March 1, 2019 to February 29, 2020. This includes, but is not limited to, the following. a) Expense reports, including back-up receipts b) Credit cards statements, including back-up receipts c) Automobile expense records, including back-up receipts d) Any and all other records that document Secretary Urema’s [sic] expenses, including back-up receipts . . . 2) The written employee reimbursement policy of the Department of Veterans’ Services. Previous appeals The requested records were the subject of previous appeals. See SPR20/0889 Determination of the Supervisor of Records (June 17, 2020) and SPR20/0968 Determination of the Supervisor of Records (June 30, 2020). SPR20/0968 was closed after Mr. Herman notified this office of his wish to withdraw the administrative appeal. Having not received a response from the Department, Mr. Herman petitioned this office and this appeal, SPR20/1095, was opened as a result. 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

Stuart Ivimey, Esq. SPR20/1095 Page 2 July 17, 2020 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. 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. Fee estimate – agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current appeal In his appeal petition, Mr. Herman states the following: 14) On May 29, 2020 Mr. Ivimey responded, imposing a charge of $262.50 for Segregation and redaction of the responsive records. But “A fee shall not be assessed for time spent segregating or redacting records unless such

Stuart Ivimey, Esq. SPR20/1095 Page 3 July 17, 2020 segregation or redaction is required by law or approved by the Supervisor . . . .” 950 C.M.R. 32:07(2)(d). Mr. Ivimey ignores this provision. Moreover, the redactions Mr. Ivimey claims are necessary are actually discretionary in most, if not all, cases. Further, Mr. Ivimey claims that certain expenses are exempt if they are medically related, but it is unclear why medical expenses would be mixed in with Secretary Urena’s expense records, given that the expenses of government officials typically consist of items such as travel, meals, mileage, and hotel accommodations. 15) Mr. Ivimey claims the Fair Information and Practices Act (M.G.L. c. 66A) as a basis for making some redactions. There is no basis in law for claiming this statute in the matter at hand. . . . 17) Accordingly, please order Mr. Ivimey to not charge for the responsive records. In the Department’s June 18, 2020 response, it stated the following: “[t]he [Department] agrees to your fee waiver request concerning the agency’s response to the above-referenced public records request. DVS intends to provide the requested documents, subject to redactions and exemptions provided by law, on or before July 3, 2020.” Whereas the Department agreed to waive its fee estimate for the production of responsive records, I find that Mr. Herman’s appeal regarding this fee estimate is resolved. Mr. Herman further states the following in his petition: 9) Because Mr. Ivimey agreed to waive the fee, on June 19, 2020 I withdrew my second appeal. 10) On June 30, 2020 I reminded Mr. Ivimey that his self-imposed deadline of July 3, 2020 was approaching. 11) . . . Mr. Ivimey has failed to produce[] the expense records; in fact, I have not heard word one from him since he waived the fee. . . . 16) The public records law requires agencies to “identify any records, categories of records or portions of records that the agency . . . intends to withhold . . .” M.G.L., c.66, §10(b)(iv). In other words, agencies cannot simply say it is withholding records; it must identify the exact records it is withholding. . . . Mr. Ivimey fails to comply with this requirement. . . . Where the Department indicated in its June 18th response that it intends on providing responsive records, I find the Department must identify a reasonable timeframe it intends on producing the records. See G. L. c. 66, § 10(b)(vi). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, the Department must identify the records it possesses that are responsive to Mr. Herman’s request. See G. L. c. 66, § 10(b)(iv) (a written response shall identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is

Stuart Ivimey, Esq. SPR20/1095 Page 4 July 17, 2020 based). Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman