Herman, Colman v. Executive Office of Housing and Livable Communities (SPR 20260873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 23, 2026 SPR26/0873 Adrian Walleigh, Esq. Counsel and Records Access Officer Executive Office of Housing and Livable Communities 110 Cambridge Street Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing and Livable Communities (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2026, Mr. Herman requested: [1] Records of any and all expenses that [an identified individual] incurred in his capacity of secretary of Housing and Livable Communities for the period January 1, 2025 to December 31, 2025. This includes, but is not limited 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 [the 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 Housing and Livable Communities[.] The Office responded on February 12, February 24, and March 10, 2026. Unsatisfied with the Office’s responses, Mr. Herman petitioned this office and this appeal, SPR26/0873, was opened as a result. 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

Adrian Walleigh, Esq. SPR26/0873 Page 2 March 23, 2026 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. Current appeal In his appeal petition, Mr. Herman contends: 1) I had asked for back-up receipts, but there were no copies of the actual check- out bills in the production for the following hotel stays[:] a) Hotel on North b) Treehouse Lodge c) Marriott (one of the two stays — the one for $640.04). 2) Copies of the room service receipts were missing. 3) The exemption claim lacked the required specificity. On March 20, 2026, Mr. Herman further clarified, “I am appealing the claim or [sic] exemption (c) because it lacks specificity and instead merely parrots back the law.” The Office’s Responses On February 12, 2026, the Office stated, “. . . HLC intends to provide records responsive to the request but is notifying you we are extending the responsive timeline to 15 business days . . . .” In its February 24, 2026 response, the Office cited Exemption (c) of the Public Records Law to redact and withhold responsive records. See G. L. c. 4, § 7(26)(c).

Adrian Walleigh, Esq. SPR26/0873 Page 3 March 23, 2026 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). 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 its February 24th response, the Office asserted: Please be advised EOHLC redacted information in the form of credit card numbers, personal addresses, account numbers, and transponder numbers from your request . . . . Furthermore, HLC withheld PDFs of MapQuest directions containing personal addresses in their entirety pursuant to M.G.L. c. 4, § 7, cl.

Adrian Walleigh, Esq. SPR26/0873 Page 4 March 23, 2026 26(c). The reimbursement forms provided, however, do contain mileage information and general locations. To the extent that the Office redacted credit card numbers, account numbers, and E-ZPass transponder numbers, I find that the Office may permissibly redact this information under Exemption (c) of the Public Records Law. However, with regard to the personal street addresses and MapQuest directions, the Office did not meet its burden to redact and withhold this information under Exemption (c). It is unclear how the withheld information contains intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not 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. Additionally, it is unclear how the MapQuest directions can be withheld in its entirety. The Office must explain whether the record can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Burden of Specificity In its March 10, 2026 response, the Office stated: HLC imposed redactions on portions of the records that were nonresponsive, as indicated in our cover letter. The line items on the credit card bills and portions of the Hy-Line supporting documentation were redacted as nonresponsive to your request for expenses incurred by [an identified individual]. MGL ch. 66, s. 10. The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Office’s response, it is unclear which exemption the Office is citing in order to redact the responsive records. Consequently, the Office must explain the specific exemption or exemptions of the Public Records Law that apply.

Adrian Walleigh, Esq. SPR26/0873 Page 5 March 23, 2026 Additional Records Based on the Office’s response and in conjunction with the information provided in Mr. Herman’s appeal, it is unclear if the Office possesses additional records responsive to the request. Specifically, it is unclear whether the Office possesses “the actual check-out bills” and “[c]opies of the room service receipts.” 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). 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). Consequently, the Office must clarify whether additional records exist. 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