Colman Herman v. Office of the Comptroller (SPR 20211269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2021 SPR21/1269 Amy L. Nable, Esq. General Counsel / Assistant Comptroller Office of the Comptroller One Ashburton Place, 9th Floor Boston, MA 02108 Dear Attorney Nable: I have received the petition of Colman Herman appealing the response of the Office of the Comptroller (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 17, 2021, Mr. Herman submitted the following five separate requests: a) [C]opies of any and all records found at the link below for settlements and/or judgments made on behalf of the Office of the Attorney General. b) [C]opies of any and all records found at the link below for settlements and/or judgments made on behalf of the Department of Children and Families. c) [C]opies of any and all records found at the link below for settlements and/or judgments made on behalf of the Department of Correction. d) [C]opies of any and all records found at the link below for settlements and/or judgments made on behalf of the Office of the Governor. e) [C]opies of any and all records found at the link below for settlements and/or judgments made on behalf of the Department of Transitional Assistance. All five requests refer to a hyperlink provided by the Office in a previous email to Mr. Herman. On May 3, 2021, the Office provided Mr. Herman with a number of records responsive to his request. Previous Appeal This request was the subject of a previous appeal. See SPR21/1183 Supervisor of Records Determination (May 18, 2021). In my May 18th determination, I noted that the Office intended to provide a supplementary response, The Office provided its supplemental response on May 19, 2021. Unsatisfied with Office’s supplemental response, Mr. Herman appealed, and this case 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

Amy L. Nable, Esq. SPR21/1269 Page 2 June 2, 2021 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. Current Appeal In his appeal petition, Mr. Herman contends that the Office “fails to state what responsive records actually exist.” He also states that “[i]f [the Office] misunderstood what I wanted, [it] now knows what I want.” The Office’s May 19th Response In its May 19, 2021 response, the Office explains that it “believes that it has fully complied and provided all responsive records.” The Office further explains that it “does not dispute that Mr. Herman had conversations with the Office about the requests prior to their submission, but disagrees that it was clear he was requesting anything other than what was identified in his written requests.” The Office further explains: [The Office] interpreted this language [of the requests] as a request for a different breakdown of specific payments from the Settlements and Judgments Reserve, since that is the type of information kept on the CTHRU site. [The Office] did not interpret it as a request for additional records related to those payments. This interpretation was based on: 1) the plain language of the request; 2) the fact that Mr. Herman had previously said that he was not looking for other records related to three of the five state agencies; and 3) the fact that Mr. Herman had discussed with [two representatives of the Office] that the departments which submitted the claims were the best source for additional information about those claims. [The Office] therefore provided Mr. Herman with five spreadsheets, based on data available at the link he referenced.

Amy L. Nable, Esq. SPR21/1269 Page 3 June 2, 2021 Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. Based on Mr. Herman’s original written requests for “copies of any and all records found at the link below for settlements and/or judgments made on behalf of” a number of government agencies, and based on the information provided in his appeal petition, I find it is unclear what specific records Mr. Herman is seeking beyond the spreadsheets that have already been provided to him. Accordingly, if Mr. Herman seeks additional records regarding the documentation, substance, and content of settlement agreements, he may wish to clarify his written request in order to reasonably describe the requested records. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman wishes to submit an additional public records request to the Office, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman