Colman Herman v. Office of the Treasurer and Receiver General (SPR 20251615)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2025 SPR25/1615 Cassandra Chung Paralegal/Records Access Officer Office of the Treasurer and Receiver General One Ashburton Place, 12th Floor Boston, MA 02108 Dear Ms. Chung: I have received the petition of Colman Herman appealing the response of the Office of the Treasurer and Receiver General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2025, Mr. Herman requested, “[p]lease give me Treasurer Goldberg’s email address.” The Office provided responses on June 6, 2025 and June 7, 2025. Unsatisfied with the Office’s responses, Mr. Herman petitioned this office and this appeal, SPR25/1615, was opened as a result. Subsequently, the Office provided a supplemental response on June 16, 2025, which Mr. Herman appealed. 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

Cassandra Chung SPR25/1615 Page 2 June 23, 2025 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. Current appeal In his June 6, 2025 appeal, Mr. Herman stated, “[t]his is an appeal. Failure of treasury to respond to request below.” In his June 16, 2025 appeal, Mr. Herman asserts, “[s]he says that she is ‘aware of’. She needs to check and not guess.” The Office’s June 6th, June 7th, and June 16th responses In its June 6, 2025 response, the Office stated “[t]his is the Treasurer’s email address ...” In response to Mr. Herman’s inquiry on June 7, 2025, inquiring whether there are additional email addresses, the Office stated “[n]one that I am aware of.” In its June 16, 2025 response, the Office asserted, “I already provided you with the Treasurer’s email address. There are no more responsive records to this inquiry. The Treasurer ha[s] no other email address that I am aware of. There is nothing else I can provide.” On June 7, 2025 Mr. Herman stated, “[p]lease check.” Having received no response, Mr. Herman then appealed. In a separate email dated June 16, 2025, the Office stated, “[n]o, she does not.” No Duty to Create Records Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the Office has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Herman is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c).

Cassandra Chung SPR25/1615 Page 3 June 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman