Colman Herman v. Massachusetts Department of State Police (SPR 20241197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1197 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Colman Herman appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2023, Mr. Herman requested “copies of any all communications related to the funeral of [an identified individual].” Previous Appeals This request was the subject of previous appeals. See SPR23/2454 Determination of the Supervisor of Records (October 27, 2023); SPR24/0317 Determination of the Supervisor of Records (February 16, 2024) and SPR24/0730 Determination of the Supervisor of Records (March 22, 2024). In my March 22nd determination, I found it was unclear whether the Department possesses additional responsive records. Subsequently, the Department responded on April 19, 2024, indicating it does not possess additional responsive records. Unsatisfied with the Department’s response, Mr. Herman further appealed, and this case 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. 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

Allison Mondello SPR24/1197 Page 2 May 6, 2024 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. 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 current appeal petition, as in his previous appeal petition, Mr. Herman states the following: What I am seeking here are the communications that took place between [a specific] Congresswoman ... and/or her representatives in which she/they ask the state police for a police escort for a funeral, and the responses of the state police — nothing more. I am NOT interested in anything related to security measures. Mr. Herman further contends that the Department “failed to produce the communications that took place between [a named] Congresswoman ... and/or her representatives in which she/they ask for the state police escort for the funeral, and the responses of the state police.” The Department’s April 19th Response In its April 19, 2024 response, the Department states the following: [T]he department conducted an additional diligent search for records that could be responsive to [Mr. Herman’s] request. Upon completion of the search, the department was unable to locate any additional responsive records, or communications, beyond what was previously provided to [Mr. Herman]. Records in Existence; Possession, Custody, or Control 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). Additionally, 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).

Allison Mondello SPR24/1197 Page 3 May 6, 2024 Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. Herman’s request, I will now consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman