Matthew A. Morris v. Department of Conservation and Recreation (SPR 20171130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 5, 2017 SPR17/1130 Bridget Connelly, Esq. Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Matthew A. Morris, Esq., of Bowditch & Dewey, LLP on behalf of his client, John P. Hannon, appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Morris requested records pertaining to his client. Status of the requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Morris's status and that of his client's will play no role in a determination as to whether the records should be disclosed to the public. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Morris may wish to consider another means of seeking to obtain any existing responsive records. 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

Bridget Connelly, Esq. SPR17/1130 Page 2 September 5, 2017 Prior appeal The requested records were the subject of a prior appeal. See SPRl 7/ 864 Determination of the Supervisor of Records (July 7, 2017). In my July ih determination, I ordered the Department to provide Attorney Morris with another response relative to conducting a diligent search of paper, electronic, and archived records. In a subsequent response dated July 31, 2017 Department states that a search for additional records was conducted; however, the search did not reveal additional responsive records. Current Appeal Objecting to Department's July 31st response, Attorney Morris petitioned this office with the following contentions: 1. The Department claims it provided records but only provided a "summary of records." The request was for the actual records and documents that contain all the specific information stated in the February gth request; 2. The Department's April 3rd letter does not represent the product of a diligent search of the Department's records because it provided no source documentation relating to (responsive records) from 1973 through 1979; 3. Discrepancies in the April 3rd letter from the Department may be attributed to one or more clerical errors. Attorney Morris further notes that remaining responsive records "might include, by means of example and not of limitation, copies of microfiche pages of archived employment records, screen shots from a legacy computer system, and copies of any archived paper files in the Department's custody and/or control." 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, § 1O (a)(ii). In a discussion on August 29, 2017 you informed an attorney in the Public Records Division that the Department is cognizant of the records retention period regarding employment records. You agree that the Department will provide another response both explaining the search process that was performed previously and how the "summary of a record" referenced by Attorney Morris's petition was culled, including an explanation to him why the actual records cannot be provided. The Department is encouraged to consult applicable retention schedules. See Massachusetts Statewide Records Retention Schedule Number 01-17, Series Number E4-05(a). Conclusion Accordingly, whereas the Department has indicated that a more substantial response will be provided, I will consider this administrative appeal closed with the proviso that the revised

Bridget Connelly, Esq. SPRl 7/1130 Page 3 September 5, 2017 response is provided to Attorney Morris in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Matthew A. Morris, Esq.