Colman Herman v. Bristol County District Attorney's Office (SPR 20230435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2023 SPR23/0435 Courtney Almeida, Esq. Assistant District Attorney Bristol County District Attorney’s Office 218 South Main Street Fall River, MA 02721 Dear Attorney Almeida: I have received the petition of Colman Herman appealing the response of the Bristol County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2022, Mr. Herman requested: [1] Records of all the expenses [an identified individual] has incurred in his capacity as Bristol County district attorney 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 statements, including back-up receipts[;] [c] Automobile expense records, including back-up receipts[;] [d] Any and all other records that document [an identified individual’s] expenses, including back-up receipts…. [2] The written employee reimbursement policy of the Bristol County district attorney’s office[.] Previous Appeals This request was the subject of previous appeals. See SPR22/2780 Determination of the Supervisor of Records (December 16, 2022), SPR22/2933 Determination of the Supervisor of Records (January 6, 2023), and SPR23/0074 Determination of the Supervisor of Records (January 30, 2023). In my January 30th determination, I ordered the Office to provide a further response to Mr. Herman. Subsequently, the Office responded on January 30, 2023, and provided records in redacted form on February 28, 2023. Unsatisfied with the Office’s response, Mr. Herman appealed and this case was opened as a result. 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

Courtney Almeida, Esq. SPR23/0435 Page 2 March 20, 2023 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. 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. 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. Current Appeal In his appeal petition, Mr. Herman contends that the Office’s “response lacks the specificity required by law.” The Office’s March 14th Response While this appeal was pending, the Office provided a supplemental response to Mr. Herman and this Office on March 14, 2023. In its March 14, 2023 response, the Office cites Exemptions (n) and (p) for withholding responsive records. See G. L. c. 4, § 7(26)(n), (p). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.

Courtney Almeida, Esq. SPR23/0435 Page 3 March 20, 2023 G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of Exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in Exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its March 14th response, under Exemption (n), the Office argues that “[s]pecifically, orders for checks were included within those records previously provided to Mr. Herman. Therefore, those records were redacted pursuant to exemption (n).” Based on the Office’s response, it is unclear what information the Office has redacted under Exemption (n). Further, the Office has not sufficiently explained “whether, and to what degree, the record sought resembles the records listed as examples in the statute,” nor has the Office explained how disclosure of the records is “likely to jeopardize public safety.” See PETA, at 289-90. The Office must clarify these matters. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter l 50E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in

Courtney Almeida, Esq. SPR23/0435 Page 4 March 20, 2023 section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Exemption (p) Exemption (p) applies to: the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o). G. L. c. 4, § 7(26)(p). In its previous January 12, 2023 response, the Office indicates that “the records may include the home address or personal contact information of a Commonwealth employee, which must be redacted pursuant to G.L. c. 4, § 7, cl. 26(o)-(p).” In its March 14th response, the Office states that “[s]pecifically, records included District Attorney Thomas M. Quinn’s home address. Therefore, that information has been redacted pursuant to exemption (p).” Where the requested records contain the type of information contemplated under Exemptions (o) and (p) of the Public Records Law, I find that the Office has met its burden in redacting this specific information. Records in Existence 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). 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). In his appeal petition, Mr. Herman contends that his “public records request sought expense reports, but none were produced.” In its March 14th response, the Office states that it “provided 149 redacted pages. The records previously provided include all responsive records to this request.” Where the Office has indicated that it provided all the records responsive to the request, I find that Mr. Herman’s appeal regarding this portion of the request is resolved.

Courtney Almeida, Esq. SPR23/0435 Page 5 March 20, 2023 Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable 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