Colman Herman v. Commonwealth Corporation (SPR 20251543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2025 SPR25/1543 Matthew Kitsos Deputy Chief of Staff/Director of Communications Commonwealth Corporation 2 Oliver Street Boston, MA 02109 Dear Mr. Kitsos: I have received the petition of Colman Herman appealing the response of the Commonwealth Corporation (Corporation) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 9, 2025, Mr. Herman requested, “...the latest diversity data for the Commonwealth Corporation. Ideally the data would be organized by job categories. An example would be officials and administrators, professionals, service workers, office workers, clerical workers, etc.” On April 1, 2025 Mr. Herman modified his request and stated, “[c]ould you please state the number in each job category?” Prior Appeals This request was the subject of prior appeals. See SPR25/1125 Determination of the Supervisor of Records (May 2, 2025) and SPR25/1237 Determination of the Supervisor of Records (May 15, 2025). In my May 15th determination, I found that the Corporation did not meet its burden of specificity to withhold the responsive records under Exemption (c) of the Public Records Law. The Corporation provided a response on May 30, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/1543, 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 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

Matthew Kitsos SPR25/1543 Page 2 June 13, 2025 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. 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 Corporation’s May 30th Response In its May 30, 2025 response, the Corporation stated, “[p]lease find the responsive record to your request by following this link ...” Current appeal In his appeal, Mr. Herman states, “[t]he link provided by [the Corporation] has absolutely nothing to do with my public records request.” Based on Mr. Herman’s claim, it is unclear if the Corporation possesses any records responsive to his 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). Consequently, the Corporation must clarify whether the requested records exist. Conclusion Accordingly, the Corporation 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 pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Corporation’s response within ninety days. See 950 C.M.R. 32.08(1).

Matthew Kitsos SPR25/1543 Page 3 June 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman