Colman Herman v. Executive Office of Public Safety and Security (SPR 20252469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2025 SPR25/2469 Arielle Mullaney, Esq. Assistant General Counsel Executive Office of Public Safety and Security 1 Ashburton Place, Room 2133 Boston, MA 02108 Dear Attorney Mullaney: I have received the petition of Colman Herman appealing the response of the Executive Office of Public Safety and Security (Office/EOPPS) to three requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In three separate requests dated August 1, 2025, Mr. Herman requested the following: [1] [A] copy of [an identified individual’s] telephone log for the period January 1, 2025 to the present[;] [2] [A] copy of [an identified individual’s] calendar for the period January 1, 2025 to the present[;] [3] [A]ny and all of the following records[:] [a] Records of any and all expenses that [an identified individual] incurred in his capacity as [Secretary with the Office] . . . for the period August 1, 2024 to July 31, 2025t. [sic] . . .[;] [b] The written employee reimbursement policy of the the [sic] executive office of public safety and security[.] The Office responded on August 15, 2025. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR25/2469, 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

Arielle Mullaney, Esq. SPR25/2469 Page 2 September 4, 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 Office’s August 15th response In its August 15, 2025 response, the Office provided 35 pages of records responsive to Mr. Herman’s first request. Upon review, the responsive records consist of three columns of data showing a “user name,” as well as the date of the time of the call. The Office further stated the following in its response: The Executive Office of Public Safety and Security (EOPSS) received your request for the following: 1. [An identified individual’s] call logs from 1/1/2025 to present 2. [An identified individual’s] calendar from 1/1/2025 to present 3. [An identified individual’s] expenses from 8/1/2024 to 7/31/2025 Please see attached logs responsive to your first request. Please note that we are still compiling and reviewing the records responsive to your second request. We will provide these to you as soon as possible. As for your third request, please note that after a diligent search, EOPSS maintains no records responsive to your request. Current Appeal In his August 20, 2025 appeal petition, regarding his first request, Mr. Herman indicates that upon receipt of the Office’s August 15th response, he specified to the Office in an email on the same date that he sought, “a log with who called and who was called[.]” Mr. Herman further claims that the Office “ignored” this correspondence. Regarding the second request, Mr. Herman states, “EOPSS needs to provide a date when it will produce the [identified individual’s] calendar[.]” Further, upon review of the file, it appears Mr. Herman is not objecting to the Office’s response to his third request. In his appeal, he requests only that the Supervisor order the Office

Arielle Mullaney, Esq. SPR25/2469 Page 3 September 4, 2025 “to provide a date when it will produce the . . . calendar, and to provide clarification regarding the telephone log.” Consequently, regarding the third request, I find that the basis of Mr. Herman’s appeal is unclear. Please be advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Mr. Herman may wish to clarify his specific objections to the Office’s August 15, 2025 response to his third request within 90 days. See 950 C.M.R. 32.08(1). Additional Records In light of the clarification provided by Mr. Herman to the Office, it is unclear if the Office possesses additional records responsive to Mr. Herman’s first request. Specifically, where the Office provided records responsive to Mr. Herman’s first request in its August 15, 2025 response, it is unclear whether the Office possess records responsive to “a log with who called and who was called[,]” as clarified in Mr. Herman’s email to the Office on the same date. 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). The Office must clarify this matter. 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). Where Mr. Herman submitted his second request on August 1, 2025, it is unclear why the Office has not provided the responsive records for, “a copy of [an identified individual’s] calendar for the period January 1, 2025 to the present[.]” The Office must provide Mr. Herman with a date that it will commence production of the records responsive to his second request. Additionally, if possible, the Office should provide the responsive records on a rolling basis.

Arielle Mullaney, Esq. SPR25/2469 Page 4 September 4, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his first and second requests, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman