Smith, Erin v. Massachusetts Clean Energy Center (SPR 20150596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2015 SPRlS/596 Mr. Stephen L. Pike, Esq. Massachusetts Clean Energy Center 63 Franklin Street, 3rd Floor Boston, MA 0211 0 Dear Attorney Pike: I have received the petition of Erin Smith of the Boston Herald appealing the response of the Massachusetts Clean Energy Center (Center) to her request for public records dated April15, 2015. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested emails sent between the Center and "officials (or their representatives) for the potential marine terminal operators for the New Bedford terminal" within a specified time period. This request was the subject of a previous appeal. See SPR15/596 Determination of the Supervisor of Records (June 26, 2015). In response to this determination, the Center provided Ms. Smith with some responsive records on June 26,2015 and withheld other responsive documents pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G. L. c. 23J, § 2(k). You also cite G. L. c. 30A, § 21(a)(6) in your June 26 response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Stephen L. Pike, Esq. SPR15/596 Page Two October 6, 2015 G. L. c. 23J, § 2(k) The Center claims that the remaining responsive records may be withheld pursuant to G. L. c. 30A, § 21(a)(6) or G. L. c. 23J, § 2(k). However, the Center did not provide the specificity required in a denial of access to public records. Instead, the Center's response merely cites Exemption (a), as well as language from G. L. c. 23J, § 2(k), without any further explanation as to the exemption's applicability to the requested records. With respect to the Center's claim under G. L. c. 23J, § 2(k), it is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Open Meeting Law You state that the remaining responsive records are exempt under G. L. c. 30A, § 21(a)(6) or G. L. c. 23J, § 2(k). As a result, it is unclear based on the written response whether the Center is denying Ms. Smith access to the records under the Open Meeting Law. A member of my staff spoke with you to clarify these matters. I understand you are not denying access to records under the Open Meeting Law; instead, you cite G. L. c. 30A, § 21(a)(6) as an analogy to bolster your argument that the records may be withheld. However, whereas the Center's burden is to explain to the requester whether any exemptions apply, the Center is ordered to provide Ms. Smith with a more detailed explanation regarding its citation of the Open Meeting Law. Conclusion I find that the Center failed to satisfy its burden of explaining with specificity how the withheld documents, in their entirety, are exempt from disclosure under G. L. c. 23J, § 2(k). See Reinstein v. Police Comm'r ofBoston, 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). Accordingly, whereas the Center has not overcome the presumption that the requested records are public, the Center is hereby ordered, within ten (1 0) days, to provide Ms. Smith with the remaining responsive records. If the Center maintains that any portion of these records are exempt from disclosure it must, within ten (10) days, provide to Ms. Smith a written explanation, with specificity, how a particular exemption applies to each record. 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. A copyof 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.

Mr. Stephen L. Pike, Esq. SPR15/596 Page Three October 6, 2015 cc: Ms. Erin Smith Ms. Amy Nable, Esq., Division of Open Government