Colman Herman v. Boston Planning & Development Agency (SPR 20222423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2022 SPR22/2423 Colin T. Donnelly Public Records Specialist Boston Planning & Development Agency One City Hall Square, 9th Floor Boston, MA 02201 Dear Mr. Donnelly: I have received the petition of Colman Herman appealing the response of the Boston Planning & Development Agency (Agency) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2022, Mr. Herman requested the following with regard to [an identified person]: [A] The City of Boston and the BRA consulted with the Massachusetts State Ethics Commission (“Ethics Commission”) regarding this appointment. The Ethics Commission indicated that, in the proper discharge of his official duties, [the identified person’s] dual appointment as Agency Director and the City of Boston’s Chief of Planning is permitted under applicable law, subject to the filing of appropriate disclosures with his respective appointing authorities. . . . [B] [The identified person] shall file the appropriate disclosures with his respective appointing authorities; [C] The Agency [BRA] and the City of Boston shall enter into a mutually agreeable cooperation agreement regarding his dual appointment of the Chief of Planning and Agency Director; and [D] The Agency and [the identified person] shall enter into a mutually agreeable appointment agreement regarding his uncompensated position as Agency Director for which he would receive no salary, benefits, per diem reimbursements or other payments, or retirement-related creditable service from the Agency. With regard to the above, please provide me with copies of the following: 1) Any all communications with the State Ethics Commission (See A above). Communications include, but are not limited to, emails, text messages, letters, 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

Colin T. Donnelly SPR22/2423 Page 2 October 31, 2022 memoranda, faxes, and/or notes. If any related communications were conducted via personal devices, they are public records and therefore they must be produced. 2) The documents cited in B, C and D above. 3) Any and all other communications related to any and all of the above matters. 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 produced. [emphasis added]. On October 7, 2022, the Agency informed Mr. Herman that they were still working on gathering the records, and expected to provide all the records by October 12, 2022. When Mr. Herman did not receive the responsive records, on October 25, 2022, Mr. Herman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). After this appeal was opened, on October 26, 2022, the Agency contacted a Senior Attorney in the Public Records Division to notify this Office that the Agency has now provided Mr. Herman with the records responsive to his September 25th request. Conclusion Accordingly, where the Agency provided Mr. Herman with the records responsive to his request, I will consider this administrative appeal closed.

Colin T. Donnelly SPR22/2423 Page 3 October 31, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman