Mike Marketti v. Department of Environmental Protection - Central Regional Office (SPR 20160527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 4, 2016 SPR16/527 Ms. JoAnne Kasper-Dunne Department of Environmental Protection Central Region Office 8 New Bond Street Worcester, MA 01606 Dear Ms. Kasper-Dunne: I have received the petition of Mark Marketti appealing the response of the Department of Environmental Protection- Central Region Office (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Marketti requested the following reports "Supplemental Hydrogeological Investlgatton Report, Southbridge Sanitary Landfill, Southbridge, Massachusetts by Geosyntec Consultants, September 2008-Dra:ft; May- 2011-Revision 1." You initially provided Mr. Marketti with a response, dated June 2, 2016. On June 29,2016 Mr. Marketti petitioned this office contending that, "No one kept a copy ofthe reports I requested as they could not find the reports or furnish me with copies ... Therefore I am appealing a denial of my public records request." 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, § 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. 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 ( c); see also District 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. JoAnne Kasper-Dunne SPR16/527 Page 2 August 4, 2016 No Duty to Create Records On July 25,2016 via email and July 27 in a phone conversation with a member of my staff, you informed this office that Department is not refusing access to records; however, it is unclear whether the Department possesses responsive records. Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26). Conclusion Subsequent to the intervention by a member of my staff, this office was notified that a revised response will be provided. Accordingly, I will consider this administrative appeal closed with the proviso that Department provide a detailed written response to Mr. Marketti without delay, made in accordance with the Public Records Law, its Access Regulations, and this order. A copy of 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. Marketti may appeal the substantive nature ofthe Department's response within ninety (90) days. See 950 C.M.R. 32.08(2). Supervisor of Records cc: Mr. Mark Marketti