David Weimer v. Div. of Capital Asset Management (SPR 20230113)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2023 SPR23/0113 Christopher Guerin Records Access Officer Division of Capital Asset Management and Maintenance Office of the General Counsel One Ashburton Place, 15th Floor Boston, MA 02108 Dear Mr. Guerin: I have received the petition of David Weimer appealing the response of the Division of Capital Asset Management and Maintenance (DCAMM) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2022, Mr. Weimer requested, “[a]ny and all emails sent or received between [January 1, 2022 and April 21, 2022] by [three identified individuals] containing the word Ripples.” Mr. Weimer has asked that the records be provided electronically, by email attachment if available or CD-ROM. On July 14, 2022, July 28, 2022, August 24, 2022, October 27, 2022 and November 18, 2022, DCAMM responded to Mr. Weimer asking for extensions of time to produce the requested records. In DCAMM’s October 27th response, it asserts, “[w]e require additional time for response to your Public Records Request No. 22-83. While we plan to deliver responsive records in our possession on or before the Public Records Request Extension Date, circumstances may necessitate a further extension. If it appears a further extension may become necessary, this office will contact you directly.” On January 19, 2023, after not receiving any of the records, or any further communication and update on the status of the records request, Mr. Weimer petitioned the Supervisor of Records (Supervisor), as a result, 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 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 SPR23/0113 Page 2 February 1, 2023 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). Subsequently, I learned that DCAMM provided a response to this office and Mr. Weimer on January 30, 2023. DCAMM’s response states, “[w]e’re in receipt of your appeal to the [Supervisor] and apologize for the timing of this response. Our goal is to be as timely as possible but securing and reviewing records for responsiveness can be challenging at times. We’d like to propose a rolling production schedule for this request which will help ensure you begin to get non-exempt responsive records before our process is completed. We will assemble the first tranche of records with a projected delivery date of February 14th, with subsequent tranches delivered as soon thereafter as possible. . . .” Where Mr. Weimer’s request was submitted on April 25, 2022, I find that DCAMM has not met its obligation under the Public Records Law in responding to this public records request. DCAMM should update Mr. Weimer on a weekly basis on the progress of reviewing and providing the responsive records. While DCAMM informed Mr. Weimer that he will receive the first batch of records on the projected date of February 14th, the DCAMM should continue to review and release responsive records on a rolling basis. Conclusion Accordingly, DCAMM is ordered to provide Mr. Weimer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of the 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. If issues remain unresolved, Mr. Weimer may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Weimer