Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20242989)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2024 SPR24/2989 Christopher D. Guerin, Esq. Division of Capital Asset Management & Maintenance Office of the General Counsel One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2024, Mr. Herman requested, “…any and all communications related to the Friends of the Paragon Carousel for the period January 1, 2024 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes. . . .” The Division provided Mr. Herman with a response on October 15, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/2989, 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 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

Christopher D. Guerin, Esq. SPR24/2989 Page 2 November 15, 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 October 15th response In its October 15, 2024 response, the Division asserted, “[w]e require a brief extension of time for response to your Public Records Request No. 2024-168. While we plan to deliver responsive records in our possession on or before the Public Records Extension Date [October 24, 2024], circumstances may necessitate a further extension. If it appears a further extension may become necessary, we will contact you directly. . . .Barring the necessity for a further extension, on or before the Public Records Extension Date, you will receive the Public Records to which you are entitled, if any. You will also receive a written explanation regarding the document(s) that [the Division] cannot produce, if any.” Current Appeal In his petition, Mr. Herman indicates, “[o]n September 29, 2024, I filed a public records request with [the Division] seeking copies of communications related to the Friends of the Paragon Carousel. On or about October 15, 2024, I received a telephone call from a [Division] lawyer asking if I would agree to an extension of the deadline to October 24, 2024, to which I quickly agreed. He followed it up with a confirmation dated October 15, 2024. On or about October 24, 2024, I received a telephone call from the same [Division] lawyer asking if I would agree to a second extension of the deadline. [T]his time to October 31, 2024, to which I also quickly agreed … Today is November 2, 2024, but I have heard nothing further from [the Division].” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Christopher D. Guerin, Esq. SPR24/2989 Page 3 November 15, 2024 Where Mr. Herman submitted his request on September 29, 2024, and the Division has not provided the responsive records, nor cited an exemption for withholding records, I find the Division has not met its burden in responding to the request in accordance with G. L c. 66, § 10(b). Consequently, the Division must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Division must provide responsive records on a rolling basis. Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to his 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 pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman