Christopher Fincham v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20181000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records Jennifer Sulla, Esq. Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 021 14 Dear Attorney Sulla: I have received the petition of Christopher Fincham appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 31,2018, Mr. Fincham requested the following records: "I. Communication (letters, memos, e-mails) between representatives of the Boston Planning and Development Agency and staff at CZM regarding the Boston Downtown Waterfront District Municipal Harbor Plan between Feb. 21,2017 and April 30,2018. 2. Meeting summaries, notes, or minutes of consultation meetings held on the Boston Downtown Waterfront District Municipal Harbor Plan between March 15, 20 17, and April 9, 201 8." EOEEA provided a response on June 28,201 8, which included responsive records. Contending that he did not receive all the records he requested on May 3 1,2018 , Mr. Fincham petitioned this office and this appeal, SPR1811000, was opened as a result. Petitions to the Supervisor of Records Mr. Fincham is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . ." 950 C.M.R. 32.08(1)(g). . One Ashburton Place, Room 1719 , Boston, Massach.u setts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Jennifer Sulla, Esq. Page 2 July 20,20 18 Tlze 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, 5 10A(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, 5 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, tj 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, tj lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Additional responsive records EOEEA's June 28,2018 response indicated that it had attached records responsive to Mr. Fincham's request. However, in his petition for appeal, Mr. Fincham claims EOEEA's response makes ". . . no reference to the existence or not of any of the other documents requested. One of the category [sic] of documents requested were notes, minutes, or summaries of the key consultation meetings held periodically for a year." 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, 5 lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). EOEEA must confirm whether or not it possesses additional responsive records and provide such response in compliance with the Public Records Law and its Regulations. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, EOEEA is ordered to provide Mr. Fincham with a response to the request, provided 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.

Jennifer Sulla, Esq, Page 3 July 20,2018 Sincerely, Rebecca S. Murray V Supervisor of Records cc: Christopher Fincham