Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20220331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2022 SPR22/0331 Christopher Guerin, Esq. Special Counsel/Records Access Officer Division of Capital Asset Management and Maintenance One Ashburton Place Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management and Maintenance (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 27, 2022, Mr. Herman requested, “the request for proposals to redevelop the Hurley building [and a]ll documents submitted by the bidders.” Previous Appeal The records sought by Mr. Herman are the subject of a previous appeal. See SPR22/0184 Supervisor of Records Determination (February 9, 2022). There, I closed Mr. Herman’s appeal because the Division provided a supplemental response on February 9, 2022. Unsatisfied with the substantive nature of the Division’s supplemental response, Mr. Herman petitioned this office and this appeal, SPR22/0331, 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 agency or municipality 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 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

Christopher Guerin, Esq. SPR22/0331 Page 2 February 17, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Division’s February 9th Supplemental Response On February 9, 2022, the Division stated: Mr. Herman is not challenging the determination for exemption [d], but argues inadequate identification of records. As you know, G.L. c. 66, §10 requires that the response identify “records, or categories of records” the agency intends to withhold. We believe our response, including providing access to the Call for Offers and reference to its responsive documents, adequately identified the category of records withheld and satisfied the requirements of G.L. c. 66, §10. In his February 9th appeal, Mr. Herman asserted the Division “continues to fail to enumerate with specificity what records DCAMM is withholding. Accordingly, I ask you again to please order DCAMM to enumerate with specificity what records it is withholding.” The URL link in the Division’s initial response provides access to a web page that identified five unique categories that bidders must submit proof of to be considered for the renovation of the Hurley building. See G. L. c. 66, § 10(b)(iv) (records access officer must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold…”). Accordingly, I will consider this appeal closed. I encourage the parties to continue to communicate further to assist the requestor in modifying the scope of the request. G. L. c. 66, §10(a)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman