Playing Word Games with Massachusetts Public Records Requests

By Colman Herman

In an effort to shield information from the public, it is not uncommon for government officials in Massachusetts to play word games when responding to public records requests. Here’s a prime example.

I recently made a public records request for certain communications made by the secretary of the Executive Office of Administration and Finance (A&F), Michael Heffernan, aka the state budget chief. Heffernan reports directly to Gov. Charlie Baker.

In my request, I defined communications as emails, letters, memoranda, faxes and notes. And because public officials nowadays often use personal devices to do the work of the people, (as Hilary Clinton did), I added that if any communications were done through personal email accounts and text messaging, they are public records.

After I filed an appeal with Secretary of State William Galvin’s office because of A&F’s failure to respond, I heard from Robert Ross, the A&F’s top lawyer and who reports directly to Heffernan. “Upon inquiry, it is my understanding that this office does not have possession, custody or control of the public records that you have requested,” he wrote to me.

When I wrote back to Ross asking him if he had searched personal email accounts and text messages, as I clearly specified in my public records request, he got real lawyerly on me.

“We undertook a reasonable inquiry of all possible sources of documents that would have been responsive to your request,” he wrote. “As stated, we identified no responsive documents.”

Does it get any more slippery than that? I’m quite suspicious when someone answers a yes or no question with a longer than necessary explanation that does not directly respond to what I asked.

So I filed another appeal with the supervisor of public records in Galvin’s office, thinking it would be a slam-dunk win for me. So wrong was I!

Rebecca Murray, the supervisor, bought what Ross was selling hook, line and sinker, and ruled for him. But her explanation was not particularly enlightening.

Murray restated Ross’ evasive response in her ruling, and then wrote: “Under the Public Records Law, [A&F] is not required to create a record in response to a public records request. . . . 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.”

Murray never bothered to question Ross about what sources he searched so she could make her own independent determination as to whether or not Ross conduced a “reasonable” search. In other words, Murray made Ross the arbiter of what is reasonable in searching his boss’ records.

Moreover, I never asked A&F to create any records; I simply asked that personal email accounts and text messages be searched for existing records.

Contrast this with what happened when I recently made a public records request of the Berkshire County District Attorney’s Office in Massachusetts. After I was provided with the responsive records by the DA, here too I asked whether private emails and text messages had been searched, as I had specified. The answer that came back was “NO.”

Now that’s an answer!

Colman M. Herman is a freelance writer and reporter living in Boston.

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