Colman Herman v. Department of Occupational Licensure (SPR 20212701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2021 SPR21/2701 Araceli Avila Ging Division of Occupational Licensure Public Records Unit 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. Ging: I have received the petition of Colman Herman appealing the response of the Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 16, 2021, Mr. Herman requested the following: copies of any and all communications related to the Division of Professional Licensure and/or the Division of Occupational Licensure failing to perform criminal records checks of licensees. This is for the period January 1, 2021 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes. If any related communications were conducted via personal devices, they are public records and therefore they must be provided. Previous Petition for an Extension of Time The request was the subject of an October 4th petition to the Supervisor of Records (Supervisor) for an extension of time. See SPR21/2553 Determination of the Supervisor (October 12, 2021). The Division was granted an extension of 15 business days to furnish copies of records responsive to Mr. Herman’s request. See G. L. c. 66, § 10(c). On October 13, 2021, the Division provided Mr. Herman with a response to the request which states, “[t]he Division performed a search of all Division email communications from January 1, 2021, to the date of the request using the search terms criminal record check within three words of licensee. The Division found no responsive emails, nor any other records responsive to your request via any other vehicles of communication.” As a result of the Division’s October 4th petition to the Supervisor for an extension of 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

Araceli Avila Ging SPR21/2701 Page 2 October 28, 2021 time and the Division’s October 13th response, Mr. Herman petitioned the Supervisor, and this appeal was opened. In his October 14th petition, Mr. Herman contends, “…first [Attorney] Dick says there are a lot of responsive records and then Ms. Ging says there are no responsive records.” Based on the Division’s petition for an extension of time, and the Division’s October 13th response indicating there were no responsive records, I find it is unclear whether any responsive records existed and were destroyed or whether responsive records never existed. The Division must clarify this. Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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