Herman, Colman v. Plymouth District Attorney's Office (SPR 20260861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2026 SPR26/0861 Karen Palumbo, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Colman Herman appealing the response of the Plymouth County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 3, 2026, Mr. Herman requested: [1] Records of any and all expenses that [an identified individual] incurred in his capacity of Plymouth County district attorney for the period January 1, 2025 to December 31, 2025. This includes, but is not limited to the following. 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 [an identified individual’s] 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 Plymouth County district attorney’s office[.] It is my understanding that the Office assigned the request reference number R001702- 010726. Previous Appeal This request was the subject of a previous appeal. See SPR26/0405 Determination of the Supervisor of Records (February 20, 2026). In my February 20th determination, I closed the 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

Karen Palumbo, Esq. SPR26/0861 Page 2 March 20, 2026 appeal in light of the Office providing a response on February 20, 2026. The Office subsequently provided further responses on February 26, 2026 and March 10, 2026. Unsatisfied with the Office’s responses, Mr. Herman petitioned this office and this appeal, SPR26/0861, 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 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 February 20th, February 26th, and March 10th Responses In its February 20, 2026 and February 26, 2026 responses, the Office provided responsive records subject to redactions under Exemption (c). Mr. Herman subsequently sent an email to the Office on March 10, 2026 reiterating his request for “a spreadsheet summary of the expenses,” and seeking clarification regarding the contents of the records. In multiple responses to Mr. Herman’s inquiries on March 10, 2026, the Office stated, “[w]e are not required to create records… you have the expenses. We are not required to answer questions.” Current Appeal In his appeal petition, Mr. Herman argued that the Office “fail[ed] to explain how the exemption applies,” and “did not produce the requested document summarizing the expenses.”

Karen Palumbo, Esq. SPR26/0861 Page 3 March 20, 2026 Possession, Custody, or Control; No Duty to Answer Questions, Create Documents Regarding Mr. Herman’s questions about the specific contents of the responsive records and his request that the Office produce a “spreadsheet summary of the expenses,” Mr. Herman is 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). Pursuant to the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Consequently, where these portions of Mr. Herman’s request ask the Office to answer questions and to create a document, I find that the Office has no duty under the Public Records Law to answer such questions or create such document, and has met its burden in responding to these portions of the request. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Karen Palumbo, Esq. SPR26/0861 Page 4 March 20, 2026 This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In the redaction logs provided with the responsive records, under Exemption (c), the Office notes that the reason for redaction is “privacy” and recites the language of Exemption (c). Based on the Office’s response, it is unclear how the Office may redact the responsive records under Exemption (c). The Office has not demonstrated that the redactions constitute intimate details of a highly personal nature that would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of this information is available from other sources. PETA, 477 Mass. at 292. The Office must also provide information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The Office must clarify these matters. 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 (10) 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman