Colman Herman v. Executive Office of Aging & Independence (SPR 20251547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2025 SPR25/1547 Lesley Moreau Records Access Officer Executive Office of Aging and Independence One Ashburton Place Boston, MA 02108 Dear Ms. Moreau: I have received the petition of Colman Herman appealing the response of the Executive Office of Aging and Independence (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 29, 2025, Mr. Herman requested “… a copy of the FY 2024 report to the legislature.” The Office responded on May 30, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/1547, 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. 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. 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

Lesley Moreau SPR25/1547 Page 2 June 5, 2025 The Office’s May 30th Response In its May 30, 2025 response, the Office informed Mr. Herman that it “… cannot share the report publicly while it’s still being finalized.” Current Appeal In his June 2, 2025 petition to this office, Mr. Herman requested that the Office be ordered to produce the requested records. The Office’s response did not contain the specificity required in a denial of access to public records. The Office must either provide the requested record or cite an exemption to the Public Records Law and explain with specificity how such an exemption applies to withhold or redact the 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”). Conclusion Accordingly, the Office 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. Mr. Herman may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman Eleanor Romano