Colman Herman v. Massachusetts Water Resources Authority (SPR 20253462)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 8, 2025 SPR25/3462 Laurie Allen Records Access Officer Massachusetts Water Resources Authority Charlestown Navy Yard 100 First Avenue, Building 39 Boston, MA 02129 Dear Ms. Allen: I have received the petition of Colman Herman appealing the response of the Massachusetts Water Resources Authority (Authority/MWRA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2025, Mr. Herman requested: [1] Records of any and all expenses that you incurred in your capacity as executive director of the Massachusetts Water Resources Authority for the period November 1, 2024 to October 31, 2025. [a] Expense reports, including back-up receipts [b] Credit cards statements, including back-up receipts [c] Automobile expense records, including back-up receipts [d] Any and all other records that document your expenses, including back-up receipts Please note that I am seeking both source documents and a spreadsheet or summary of the expenses. [2] The written employee reimbursement policy of the Massachusetts Water Resources Authority. On November 14, 2025, the Authority provided a response, and assigned reference number 548-25 to this request. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR25/3462, was opened as a result. Subsequent to the opening of this appeal, the Authority provided supplemental responses to Mr. Herman and this office on November 24, 2025 and November 25, 2025. 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

Laurie Allen SPR25/3462 Page 2 December 8, 2025 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. The Authority’s Responses In its November 14, 2025 response, the Authority provided a responsive record and stated, “[f]or item 1, there are no responsive records, as MWRA’s Executive Director, [an identified individual], has not incurred expenses nor sought reimbursement for such from MWRA for the period of November 1, 2024 to October 31, 2025. Also, [an identified individual] does not hold a MWRA credit card. For item 2, MWRA’s travel and expense policy (ADM.08) is attached.” Current Appeal In his appeal petition, Mr. Herman contends, “… [i]n a story some years ago, however, I wrote the following based on public records. [An identified individual], the executive director of the Massachusetts Water Resources Administration, gets a car paid for by the MWRA that includes gas, tolls, maintenance, repair, insurance, and other operating costs. On information and belief, nothing has changed. Accordingly, please oder [sic] the MWRA to produce the responsive records.” No Duty to Create Records Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in

Laurie Allen SPR25/3462 Page 3 December 8, 2025 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). On November 24, 2025, the Authority provided a supplemental response to Mr. Herman and this office, asserting, “MWRA staff have re-checked records in the Authority’s custody and there are no responsive records for Part 1 (a)-(d) of your original request (PRR No. 548-25).” In its November 25, 2025 response, the Authority stated, “no records were withheld, denied nor redacted. Simply stated - there are no other records in MWRA’s custody that are responsive to Mr. Herman’s original request (PRR No. 548-25), nor his new request. All responsive records were provided to Mr. Herman.” Conclusion Where the Authority has confirmed it does not possess additional records responsive to Mr. Herman’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman