Colman Herman v. Human Resources Division (SPR 20242272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2272 Michele M. Heffernan, Esq. Records Access Officer Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Colman Herman appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2024, Mr. Herman requested, “any and all documents that explain the purpose of M.G.L. c. 31, §61A (‘Police Officer and Firefighter Health and Physical Fitness Standards’)…” The Division provided a response on July 29, 2024. Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR24/2272, was opened as a result. While this appeal was opened, the Division provided a further response on August 13, 2024. 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. 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

Michele M. Heffernan, Esq. SPR24/2272 Page 2 August 23, 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 Division’s July 29th and August 13th Responses In its July 29, 2024 response, the Division provided Mr. Herman with a link to information regarding, “Chapter 677 of the Acts of 1987 for the purpose of M.G.L. c. 31, §61A.” Subsequently, the Division updated its response by providing a different link and stated, “[t]he reference was incorrect, please find a link to the correct cite.” Current Appeal In his appeal to this office, Mr. Herman states, “[o]n July 29, 2024 … HRD produced a link to the 1987 Acts and Resolves (Chapter 677): ‘An Act Extending the Time for Certain Residential Tax Credits for Renewable Energy Property.’ But this has nothing to do with my public records request, as can be seen from the title.” After the Division sent an updated link to Mr. Herman, he responded, “the link that [the Division] sent me (see below) takes me to a document titled: ‘An Act Further Regulating Public Employee Retirement in the Commonwealth.’ That has nothing to do with what I seek in my public records request.” Based on Mr. Herman’s reply and the Division’s response to the request, it is unclear if the Division possesses records 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). However, 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). If the Division does possess the responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. The Division must clarify this matter. Conclusion Accordingly, the Division 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.

Michele M. Heffernan, Esq. SPR24/2272 Page 3 August 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman