Colman Herman v. Division of Administrative Law Appeals (SPR 20242318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2024 SPR24/2318 Sitthikay Phongsa Records Access officer Division of Administrative Law Appeals 14 Summer Street, Fourth Floor Malden, MA 02148 Dear Ms. Phongsa: I have received the petition of Colman Herman appealing the response of the Division of Administrative Law Appeals (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2024, Mr. Herman requested, “… [the Division]’s 2023 annual report to the legislature. On June 26, 2024, the Division responded and stated they will provide a copy of the report once it is filed with the legislature. In response, on June 27, 2024, Mr. Herman requested, “…drafts of [the Division]’s 2023 annual report to the legislature.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2003 Determination of the Supervisor of Records (July 29, 2024). In my July 29th determination, I found that the Division had not met its burden to withhold the responsive records, in their entirety, under Exemption (d) of the Public Records Law. The Division responded on August 9, 2024 and August 12, 2024. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR24/2318, 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). 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

Sitthikay Phongsa SPR24/2318 Page 2 August 28, 2024 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. 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 August 9th and August 12th Responses In its August 9, 2024 response, the Division provided records responsive to Mr. Herman’s request via a Dropbox link. After Mr. Herman responded and indicated that he could not access the records through the provided link, the Division responded again on August 12, 2024, stating, “attached please find the drafts of the annual report” and providing the responsive records as email attachments. This included a 25-page PDF titled “Cases Filed with the General Jurisdiction Unit in 2023” that the Division provided in redacted form. Current Appeal In his appeal, Mr. Herman contests the Division’s redactions to the above-named PDF. He states, “[o]ne of the responsive records is titled: [‘]Division Of Administrative Law Appeals Cases Filed with the General Jurisdiction Unit in 2023 ….[’] The first column is redacted, but there was no claim of an exemption.” Burden of Specificity With regard to the redacted PDF provided to Mr. Herman, the Division’s response did not contain the specificity required in a denial of access to public records. The Division did not specify under what exemption of the Public Records Law it intends to redact the requested record. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Division must cite an exemption of the Public Records Law if it intends to redact the above-named PDF. 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 (10) 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

Sitthikay Phongsa SPR24/2318 Page 3 August 28, 2024 pre@sec.state.ma.us. Mr. Herman may appeal the Division’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman