Colman Herman v. Attorney General's Office (SPR 20230500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 29, 2023 SPR23/0500 Lorraine A.G. Tarrow, Esq. Records Access Officer Assistant Attorney General Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Colman Herman appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 16, 2023, Mr. Herman requested “… any and all settlement agreements and/or the like executed by the hospitals owned by the Department of Public Health for the period January 1, 2017 to the present. The hospitals are Lemuel Shattuck Hospital, Tewksbury Hospital, Western Massachusetts Hospital, and Pappas Rehabilitation Hospital for Children.” The AGO responded on March 3, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/0500, was opened as a result. While this appeal was pending, the AGO provided a supplemental response on March 28, 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. Attorney 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 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

Lorraine A.G. Tarrow, Esq. SPR23/0500 Page 2 March 29, 2023 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, Mr. Herman stated that the produced records were “... silent with regard to the existence of any settlement agreements for the three other hospitals ... Lemuel Shattuck Hospital, Western Massachusetts Hospital, and Pappas Rehabilitation Hospital for Children. Were there none?” The AGO’s March 3rd and March 28th Responses In its March 3, 2023 response, the AGO provided “... copies of settlement agreements executed by the hospitals owned by the Department of Public Health for the period January 1, 2017 to the present.” In a further response dated March 28, 2023, the AGO opined that it had no further records responsive to Mr. Herman’s February 16th request. No Duty to Create Records Under the Public Records Law, the AGO is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the AGO produced the records responsive to Mr. Herman’s request, confirmed that it does not possess any additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman