Colman Herman v. Dept of Conservation and Recreation (SPR 20171758)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 11, 2018 SPR17/1758 Bridget Connelly Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street Suite 600 Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman "would like to set up a time when [he] could come to the office of the Department of Conservation and Recreation to view any and all documents, communications, and the like" concerning legislation that requires the TD Garden to be available for charity events. Mr. Herman requested "[c ]ommunications include, but are not limited to, emails, letters, memoranda, faxes, and notes." The Department initially responded to Mr. Herman stating the Department "conducted a search; however, the search did not reveal a responsive record." Mr. Herman appealed the Department's response. 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv); 950 C.M.R. 32.06(3); 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). 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. 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

Ms. Bridget Connelly, Esq. SPRl 7/1758 Page 2 January 11, 2018 Conclusion This office encourages the Department and Mr. Herman to communicate further to enable the Department to provide requested public records. G. L. c 66, § 1 O(a)(i) (the request must reasonably describe the public record sought). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). The Department must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1 O(b )(vii) (a state agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Mr. Herman provided a scope of the request when referring to communications as mentioned above; in particular communications not limited to "emails, letters, memoranda, faxes, and notes." The Department must clarify whether it possesses any responsive records in these categories within 10 business days. If unresolved issues remain, Mr. Herman may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~f~ Rebecca S. Murray Supervisor of Records cc: Colman Herman