Colman Herman v. Massachusetts Convention Center Authority (SPR 20241120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2024 SPR24/1120 Philip Crohan Communications & External Relations Manager Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Mr. Crohan: I have received the petition of Colman Herman appealing the response of the Massachusetts Convention Center Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2024, Mr. Herman requested, “…copies of any and all communications related to” a specified news article. On April 11, 2024, the Authority provided a response. Unsatisfied with the Authority’s response, Mr. Herman petitioned the Supervisor of Records, and this appeal, SPR24/1120, 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 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. See 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Philip Crohan SPR24/1120 Page 2 April 26, 2024 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 Authority’s April 11th Response On April 11, 2024, the Authority provided records and stated, “[the Authority] has located and is producing documents attached hereto that are responsive to this request. [The Authority] is not withholding any responsive documents it has located at this time…” Current Appeal In his appeal, Mr. Herman stated, “[the Authority] fails to state a date when [it] will produce what appears to be more responsive records… By ‘at this time,’ [does the Authority] mean that there are more responsive records to come even though [they] have had a full ten business days to produce all the records? If that is the case, the public records law and its access regulation do not contemplate such vague language, which is to say that deadlines are clearly prescribed all along the way.” Possession, Custody, or Control The Authority is 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). Further, 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). Based on the Authority’s response, in conjunction with Mr. Herman’s appeal, it is unclear whether the Authority possesses additional records responsive to the request. The Authority must clarify this. Conclusion Accordingly, the Authority 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 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.

Philip Crohan SPR24/1120 Page 3 April 26, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman