Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20241355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2024 SPR24/1355 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Colman Herman appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2024, Mr. Herman requested, “...copies of any and all cases turned over by the supervisor of public records to the attorney general for enforcement from January 1, 2017 to the present. In each case I would like a copy of the cover letter sent by the supervisor to the attorney general and the attorney general’s response. (I have made similar requests in the past, but no longer have those records.)” The Division responded on April 23, 2024. Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR24/1355, 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. 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

Valerie Connolly SPR24/1355 Page 2 May 17, 2024 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. The Division’s April 23rd response In its April 23, 2024 response, the Office provided certain responsive records and cited Exemption (c) of the Public Records Law in support of the redactions of personal information. The Division asserted, “...this Division provided responses on May 11, 2021 and December 15, 2021. . . . 950 C.M.R. 32.07(1)(a) states upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record. Accordingly, where a copy of the responsive records have already been provided, this response excludes those records.” Current appeal In his appeal, Mr. Herman states, “...I clearly informed you in my public records request that I no longer have those records. Accordingly, on April 23, 2024, I asked you and [an identified individual] to please provide me with the responsive records that I once had but no longer have.” The regulation, 950 C.M.R. 32.07(1)(a), states “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” As the Division has previously provided Mr. Herman with the requested records and the regulation provides for one copy of a public record, I find that the Division has met its burden in responding to the April 9th request. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman