Colman Herman v. Boston Water & Sewer Commission (SPR 20252296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2025 SPR25/2296 Dolores Randolph Records Access Officer Boston Water and Sewer Commission 980 Harrison Avenue Boston, MA 02119 Dear Ms. Randolph: I have received the petition of Colman Herman appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 19, 2025, Mr. Herman sought, “copies of the complaint, any amended complaints, and commission answers in the matter of Terrance Williams [et al] v. Boston Water and Sewer Commission [et al], Suffolk Superior Court Civil Action No. 2284cv00996.” The Commission responded on July 29 and July 30, 2025. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR25/2296, 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. If there are any fees associated with a response a written, good faith estimate must be 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

Dolores Randolph SPR25/2296 Page 2 August 21, 2025 provided. See 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 Commission’s July 29th and July 30th Responses In its July 29, 2025 response, the Commission stated, “[t]hese materials you requested are publicly available for download if you search for the case on the Massachusetts trial court website … Please note that the original complaint is subject to an order of impoundment and therefore is not publicly available.” In its July 30, 2025 response, the Commission provided Mr. Herman with step-by-step instructions to access the responsive records via the Massachusetts Trial Court website. Current Appeal In his August 7, 2025 petition to this office, Mr. Herman stated that he had been unable to access the responsive records using the Massachusetts Trial Court website. Mr. Herman requested that the Commission be ordered to provide records in his preferred format, via email. Possession, Custody, or Control; Preferred Format The duty to comply with requests for records extends to those 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). Additionally, in accordance with the Public Records Law, 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). The Commission is advised that a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Based on the Commission’s responses, I find that it is unclear whether the Commission possesses records responsive to the request. Further, where Mr. Herman has been unable to access the responsive records using the website of the Massachusetts Trial Court, I find that it is unclear whether the responsive records can be produced in the format that Mr. Herman has requested. The Commission must clarify these matters. Conclusion Accordingly, the Commission 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

Dolores Randolph SPR25/2296 Page 3 August 21, 2025 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 Commission’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman