Colman Herman v. Massachusetts Port Authority (SPR 20211637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19, 2021 SPR21/1637 Jennifer Mehigan Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Mehigan: I have received the petition of Colman Herman appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2021, Mr. Herman stated: “Section 2(b) of the severance agreement states the following ‘. . . as explained in Massport’s [COBRA] letter to [named individual] dated on or about the Separation Date.’ Please provide me with a copy of that letter.” The Authority provided a response on July 1, 2021, denying access to the responsive record. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR21/1637, 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. 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. 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

Jennifer Mehigan SPR21/1637 Page 2 July 19, 2021 The Authority’s July 1st response In its July 1, 2021 response, the Authority states “[a]s this is personnel information, we cannot provide the COBRA letter and associated details.” The Authority’s response did not contain the specificity required in a denial of access to public records. The Authority simply denied the release of the responsive record without claiming any exemption(s) in the Public Records Law to support the withholding of the responsive document. The Authority is not permitted to issue a blanket denial without providing any further information with respect to the requested record. Consequently, I find the Authority did not meet its burden of demonstrating how the requested record is exempt from disclosure. If the Authority maintains the record is exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the responsive record. Conclusion Accordingly, the Authority 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 within ten (10) 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