Colman Herman v. Office of the Chief Medical Examiner (SPR 20211252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1252 Eric B. Hogberg, Esq. General Counsel Office of the Chief Medical Examiner Commonwealth of Massachusetts 720 Albany Street Boston MA 02118 Dear Attorney Hogberg: I have received the petition of Colman Herman appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 26, 2021, Mr. Herman requested “…copies of any and all communications related to the workers in the office of the chief medical examiner getting the COVID-19 vaccine.” The Office provided responses requesting additional time to respond to the request. Unsatisfied with the Office’s responses, Mr. Herman petitioned this office and this appeal, SPR21/1252, 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

Eric B. Hogberg, Esq. SPR21/1252 Page 2 June 1, 2021 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. Current Appeal In his appeal, Mr. Herman indicates he “…agreed to two extensions.” Mr. Herman further indicates “[o]n or about May 14, 2021, Mr. Hogberg called me and asked for yet a third extension. At that point, I had had enough.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Herman’s request was submitted on March 26, 2021, and the Office has not provided responsive records pertaining to those referenced above, I find Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office 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

Eric B. Hogberg, Esq. SPR21/1252 Page 3 June 1, 2021 within five (5) business days. 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