Colman Herman v. Massachusetts Port Authority (SPR 20211965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/1965 Christina Gibson, Esq. Public Records Access Officer General Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Gibson: I have received the petition of Colman Herman appealing the response of 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 July 8, 2021, Mr. Herman requested “…any and all communications related to the above in the files of Massport. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes. If any communications were carried out using the personal devices of Massport personnel, those communications are public records and therefore must be produced.” On July 28, 2021, The Authority responded. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR21/1965, 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 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

Christina Gibson, Esq. SPR21/1965 Page 2 August 17, 2021 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. The Authority’s July 28th response On July 28, 2021, the Authority provided Mr. Herman with numerous documents responsive to his request. Current Appeal In his appeal, Mr. Herman suggested that there are additional records responsive to his request. In a phone conversation on August 12, 2021, the Authority confirmed that there are no additional records responsive to Mr. Herman’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the Authority does not possess any additional responsive records to Mr. Herman’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman