Joshua D. Krell, Esq. v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20160791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 11, 2016 SPR16/791 Ms. Kate McKeever, Esq. General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney McKeever: I have received the petition of Joshua D. Krell, Esq. of Clark, Hunt, Ahern & Embry appealing the response of the Executive Office of Energy and Environmental Affairs (EEA) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Krell, on behalf of his specifically identified client, requested a copy of several categories of records. On June 22, 2016, EEA provided Attorney Krell with records responsive to his requests, withholding other records. All applicable fees were waived. Your June 22 letter states that certain information has been withheld pursuant to the attorney-client privilege, and Exemptions (a), (c) and (f) of the Public Records Law. In his petition, Attorney Krell states that he believes that additional documents exist that were not produced in response to portions of the request. Furthermore, Attorney Krell believes that the exemptions claimed do not pertain to the documents that have been either redacted or withheld. Status of the requester Attorney Krell should be advised that his status as the attorney for the subject of the investigation and records does not provide any greater access to the records under the Public Records Law. The Public Records Law does not distinguish between requesters. The right of requesters to inspect and obtain copies of public records is a clear statutory mandate. See G. L. c. 66, § IO( a) (any person may receive or inspect a copy of a public record). see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (the public records statute does not provide a "standing requirement" but extends the right to examine to "any person" whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity." Accordingly, the status of Attorney Krell's client and any reasons for the request shall have no bearing on the public status of responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Kate McKeever, Esq. SPR16/791 Page 2 October 18, 2016 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, § lO(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. Order A review by this office of the June 22 letter reveals that the EEA has failed to meet its statutory and regulatory obligation of specificity in citing exemptions. Accordingly, the EEA is hereby ordered to provide Attorney Krell with a revised response to the requests, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. s Su ervisor of Records cc: Mr. Joshua D. Krell, Esq.