Colman Herman v. Executive Office of Elder Affairs (SPR 20221619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2022 SPR22/1619 Lesley Moreau Records Access Officer Executive Office of Elder Affairs One Ashburton Place, 5th Floor Boston, MA 02108 Dear Lesley Moreau: I have received the petition of Colman Herman appealing the response of the Executive Office of Elder Affairs (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2022, Mr. Herman requested “any and all communications related to Motif by Monarch in Beverly, Massachusetts informing its residents that they have to move out by July 19, 2022.” Previous Appeals This request was the subject of previous appeals. See SPR22/1058 Determination of the Supervisor of Records (May 19, 2022) and SPR22/1293 Determination of the Supervisor of Records (June 16, 2022). In the June 16th determination, the Supervisor ordered the Office to clarify whether it possesses additional records, and to clarify its claims for redacting responsive records under Exemption (c). Subsequently, the Office responded on July 1, 2022. Unsatisfied with the Office’s response, Mr. Herman appealed, and this case 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. 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

Lesley Moreau SPR22/1619 Page 2 July 20, 2022 Att’y 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. Current Appeal In his appeal petition, Mr. Herman contends the following: A review of the records produced by EOEA on June 2, 2022 and July 1, 2022 reveals that this was a matter certainly requiring the input of EOEA lawyers. In that regard, [Mr. Herman] believe[s] that those records involving communications involving EOEA lawyers were withheld by EOEA without informing [him]. The Office’s July 1st Response Please be advised that, 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its July 1, 2022 response, the Office notes that it provided numerous emails with attachments and confirms that it “has no additional records.” Conclusion Where the Office has confirmed that it does not possess additional records responsive to Mr. Herman’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman