Colman Herman v. Office of the State Auditor (SPR 20240260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records February 12, 2024 SPR24/0260 Michael Leung-Tat, Esq. General Counsel Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Leung-Tat: I have received the petition of Colman Herman appealing the response of the Office of the State Auditor (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 25, 2023, Mr. Herman requested, “[c]opies of any and all nondisclosure agreements collected by the office of the state auditor.” The Office responded on January 25, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/0260, was opened as a result. 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. 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

Michael Leung-Tat, Esq. SPR24/0260 Page 2 February 12, 2024 The Office’s January 25th Response In its January 25, 2024 response, the Office advised that it “... does not possess or maintain records responsive to your request.” Current appeal In his appeal, Mr. Herman stated that, “[the Office] said there was a ‘voluminous amount of records’ that needed to be reviewed, but a week later he says there are no responsive records, even after OSA said over ten months ago that it was going to audit the nondisclosure agreements.” Based upon a conversation between an attorney at the Public Records Division and an Office representative, the Office confirmed that it has no records responsive to the request. No Duty to Create Records Under the Public Records Law, the Office 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 Office has confirmed that it does not possess records and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Herman is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman