Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20202609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 14, 2021 SPR20/2609 Valerie Connolly Records Access Officer 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 Administrative Services Division (Division) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On December 27, 2020, Mr. Herman requested “. . . hard copies and electronic copies of any and all records related to the Massachusetts Archives allowing the JFK Library and Museum to use parking lot space.” The Division responded on December 28, 2020 and January 4, 2021. Unsatisfied with the Division’s responses, Mr. Herman petitioned this office and this appeal, SPR20/2609, 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. 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 SPR20/2609 Page 2 January 14, 2021 The Division’s December 28th and January 4th responses In its December 28, 2020 response, the Division indicated that there are no responsive records. On January 4, 2021, the Division provided 2 emails responsive to Mr. Herman’s request. After the Division’s response, Mr. Herman further requested the following: “2) . . . copies of your communications with the archives staff regarding this matter. Communications include, but are not limited to, letters, memoranda, emails, faxes, and notes. 3) Is the state indemnified by the JFK library when it uses the archives parking lot?” On January 6, 2021, the Division responded by providing records responsive to item 2. With respect to item 3, the Division stated that there are no responsive records. In an email correspondence, Mr. Herman stated “[with respect to item 3], I did not make a public records request. I asked you a question, which was: Is the state indemnified by the JFK library when it uses the archives parking lot? Do you want to answer that simple question?” Where the Division has indicated it does not possess records responsive to item 3 of Mr. Herman’s January 4th request, I find that this portion of the request is resolved. 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). Additionally, please be advised that under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, whereas the Division has provided records responsive to Mr. Herman’s December 27th and January 4th requests, stated it does not possess records responsive to item 3, and is not required to answer questions in response to a request, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman