Colman Herman v. Berkshire District Attorney's Office (SPR 20222936)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2023 SPR22/2936 Joseph A. Pieropan, Esq. Assistant District Attorney Records Access Officer Berkshire County District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Colman Herman appealing the response of the Berkshire County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2022, Mr. Herman submitted a public records request to the Office. On November 29, 2022, Mr. Herman modified the time period for the records from October 1, 2021 to September 30, 2022. Mr. Herman requested the following records: [1] Records of all the expenses [an identified individual] has incurred in her capacity as Berkshire County DA for the period October 1, 2021 to September 30, 2022. This includes, but is not limited to, the following: [a] Expense reports, including back-up receipts; [b] Credit card(s) statements, including back-up receipts; [c] Automobile expense records, including back-up receipts; and, [d] Any and all other records that document [the identified individual’s] expenses, including back-up receipts. [2] The written employee reimbursement policy of the Berkshire County [DA’s] Office. 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, § 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

Joseph A. Pieropan, Esq. SPR22/2936 Page 2 January 9, 2023 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). If there are any fees associated with a response a written, good faith estimate must be 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 Office’s responses In the Office’s December 9, 2022 response, the Office advised, “[w]e received your records request and we are still in the process of gathering all of the documents you are seeking.” In a January 6, 2022 response, the Office further advised Mr. Herman “…to permit the [Office] to reply to his public records request no later than Tuesday, January 31, 2023…” Records in Existence; Possession, Custody, or Control The Office is 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). Further, 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). However, 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). Based on the Office’s response, and information provided in Mr. Herman’s appeal petition, it is unclear whether the Office possesses records responsive to this request. The Office is further advised that to the extent that records can be provided to Mr. Herman on a rolling basis, it is encouraged to do so. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). I also encourage the parties to continue to communicate so that the responsive records can be provided in an efficient manner. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable

Joseph A. Pieropan, Esq. SPR22/2936 Page 3 January 9, 2023 to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman