Colman Herman v. Group Insurance Commission (SPR 20232746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 28, 2023 SPR23/2746 Rachelle S. Mercier, Esq. Associate General Counsel Group Insurance Commission 1 Ashburton Place, Suite 1619 Boston, MA 02108 Dear Attorney Mercier: I have received the petition of Colman Herman appealing the response of the Group Insurance Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 26, 2023, Mr. Herman requested: [1] Records of all the expenses that the executive director of the Group Insurance Commission incurred during the period November 1, 2022 to the present. This includes, but is not limited to, the following. a) Expense reports, including back-up receipts b) Credit cards statements, including back-up receipts c) Automobile expense records, including back-up receipts d) Any and all other records that document the executive director's expenses, including back-up receipts. [2] The written employee reimbursement policy of the Group Insurance Commission[.] On November 8, 2023, the Commission responded and indicated that it would provide a further response. Unsatisfied with the Commission’s response, Mr. Herman petitioned this office and this appeal, SPR23/2746, was opened as a result. The Commission provided a further response on November 13, 2023, and indicated that it had no responsive records for Item 1 of the request and produced two responsive records for Item 2 of the request. In an email to this office on November 13, 2023, and a further email provided to this office on November 20, 2023, Mr. Herman indicated that he remained unsatisfied with the Commission’s response. 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

Rachelle S. Mercier, Esq. SPR23/2746 Page 2 November 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) (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 Commission’s November 8th and November 13th responses In the Commission’s November 8, 2023 response, it stated the following: . . . My apologies for responding late to your request, but be assured that I sent requests to the appropriate staff to gather any responsive documents earlier today. We will work as quickly as we can to provide you with the requested documents. I will provide a better estimate of timing once I have a better idea of how many responsive documents we have. In the Commission’s November 13, 2023 email response, it stated the following: Please see attached our acknowledgement of your request and our response letter. We do not have documents responsive to your request. For part of the request, however, there are responsive documents but we are not the official custodian. That said, to help you in obtaining the records, I have provided you with links to those documents, available on the Human Resource Department’s website. Please review the PRR Response Letter for those links. In the Commission’s November 13, 2023 response letter it stated the following: We do not have any responsive documents for your request for expenses incurred by our Executive Director. Regarding the written reimbursement policies, the GIC

Rachelle S. Mercier, Esq. SPR23/2746 Page 3 November 28, 2023 follows the reimbursement policies for managers, listed below, as set forth by the MA Human Resources Department (HRD). HRD owns the official copies of these documents and they provide copies available on their website: https://www.mass.gov/hr-policies - Manager Handbook - Red Book[.] Additionally, the GIC follows reimbursement policies per the NAGE Unit 6 Collective Bargaining Agreement (CBA). HRD owns the official copy of this document and any addenda and they provide a version of the CBA, with a memorandum of addendum, on their website… We are not withholding any public records based on a statutory or other legal exemption, and do not seek an extension to respond to your request. We are not charging fees for this request. Current Appeal Mr. Herman clarified the basis of his appeal in a November 20, 2023 email stating: I write today to supplement my appeal (see below) against the Group Insurance Commission (GIC) in the matter of SPR23/2746. The following are the details. 1) In a letter dated November 13, 2034, Rachelle Mercier of GIC provided two links to web pages containing many links. I have no idea which of those many links are responsive to my public records request. 2) Accordingly, please order GIC to clarify this matter. 3) The communications cited above will be forwarded. 4) I wish to note that in an email dated November 13, 2023, Ms. Mercier claims that GIC is “not the official custodian” of the responsive records. If there are responsive records in the files of GIC than the agency also is a custodian of the records I seek. Records on a Public Website Please be advised that it is permissible for the custodian of records to provide access to records via a link to a website. See 950 C.M.R. 32.04 (5)(e) (“A records access officer shall . . . to the extent feasible, furnish the public records by providing reasonable assistance in locating the records on an appropriately indexed and searchable public website”); see also 950 C.M.R. 32.07 (2)(a) (“A records access officer shall inform a requester of the availability of records online to avoid delays and fees associated with the provision of public records”).

Rachelle S. Mercier, Esq. SPR23/2746 Page 4 November 28, 2023 Where Mr. Herman indicates that “I have no idea which of those many links are responsive to my public records request[,]” I find the Commission must provide him with reasonable assistance to enable him locate the responsive records. Further, based on the Commission’s responses, it remains unclear if there are any records in the Commission’s files that may be responsive to the request. 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). 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). The Commission must clarify this matter. Conclusion Accordingly, the Commission is ordered to provide Mr. Herman with a response to the request, provided 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 to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman