Matthew Rocheleau v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20181655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 26, 2018 SPRlS/1655 Tori T. Kim, Esq. General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Kim: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA). Specifically, Mr. Rocheleau requested the following: Request #1: a) A list of any/all promotions and demotions of law enforcement employees at the Massachusetts Environmental Police since Jan. 1, 2015, showing the name of the employee promoted/demoted, the effective date of that change, and the change in job title; or, if no such list is available, any/all emails, messages ( electronic or otherwise), or notices informing Massachusetts Environmental Police department members about promotions, demotions, or both. b) The results of any/all promotional exams taken by Massachusetts Environmental Police employees ... since Jan. 1, 2014. c) Any/all emails, messages ( electronic or otherwise), or notices informing Massachusetts Environmental Police employees ... of the results of any/all promotional exams they took since Jan. 1, 2014. d) Any/all emails, messages (electronic or otherwise), or notices informing Massachusetts Environmental Police employee ... of the results of any/all promotional exams he took since Jan. 1, 2014; and any/all emails, messages ( electronic or otherwise), or notices sent during 2018 informing Massachusetts Environmental Police employee ... about why he was not promoted. e) Any/all lists created since Jan. 1, 2015 of promotion eligible law enforcement employees within the Massachusetts Environmental Police 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

Tori T. Kim, Esq. SPR18/1655 Page 2 November 26, 2018 department, including each employee's full name, their rank on the list, and their eligible date. (Note this request is for both certified and uncertified versions of said lists) Request #2: a) Any/all grievances and unfair labor practice charges/complaints filed by employees of the Massachusetts Environmental Police and/or any union(s) that represent(s) that agency's employees since Jan. 1, 2015; and any/all formal filings made in those grievance cases. The EOEEA responded to Mr. Rocheleau's request by providing some responsive records, claiming others were being withheld pursuant to Exemption ( c) of the Public Records Law and indicating portions of his request would be responded to by a different entity. G. L. c. 4, § 7(26)(c). 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, § 1O A( 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The EOEEA 's response In its response, the EOEEA indicates that it has "conducted a diligent search of files dating back to January 1, 2015, and also conducted a search of [its] HR databases. In addition, [it has] conferred with the Human Resources Division (HRD), which is the principal agency that serves as custodian of most of the records sought and is responding to an identical request submitted by [Mr. Rocheleau]."

Tori T. Kim, Esq. SPR18/1655 Page 3 November 26, 2018 The EOEEA indicates that with respect to Request #1 (a), it is "providing a printout from [its] HR database (HR/CMR) listing the officers whose job positions changed during the time period requested; the job title listed is the one effective after the applicable change. For all officers except [identified officers], the change reflects a move to a high job position. In addition, [an identified individual] moved up to a Sergeant position in July 2016." The EOEEA indicates that with respect to Request #1 (b)-(e), the HRD will be providing a response to this portion of Mr. Rocheleau's request, explaining that the HRD "is the primary custodian of records as relating to eligibility lists and promotional examinations." Specifically with respect to Request #1 (d), the EOEEA states that any additional correspondence that the Massachusetts Environmental Police may possess is subject to Exemption (c ). The EOEEA indicates that with respect to Request #2 (a), the EOEEA is "providing relevant grievances in the possession of the Massachusetts Environmental Police (MEP) that did not proceed to Step III or arbitration; for Step III and beyond, the records in MEP's possession are duplicative of those that HRD will be providing." The EOEEA indicates that "any grievances involving employee discipline, transfer, personnel record, or promotion have been withheld pursuant to [Exemption (c )]." Mr. Rocheleau 's petition for appeal In his petition for appeal, Mr. Rocheleau indicates he is appealing certain aspects of the EOEEA's response. With respect to Request #1 (d), Mr. Rocheleau indicates he is disputing the EOEEA's Exemption (c) claim. With respect to Request #1 (b)-(e), Mr. Rocheleau requests that this office order the EOEEA "to explain whether it possesses any records responsive to items ... and provide all responsive records." With respect to Request# 2 (a), Mr. Rocheleau requests this office order the EOEEA to provide all responsive records in its possession. Mr. Rocheleau asserts that "[t]he public records law requires the department to produce documents it possesses; it does not allow for it to pass that responsibility on to another agency to provide similar records." Compliance with the requirements ofp roviding a response; specificity Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known;

Tori T. Kim, Esq. SPR18/1655 Page 4 November 26, 2018 (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Despite the EOEEA's response, it is unclear how the EOEEA complied with the criteria required by an RAO in providing a response to a public records request. See id. Specifically, with respect to Request #1 (b)-(e), although an RAO is required to identify the agency or municipality that may be in possession, custody or control of 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, § 1O (a)(ii). Further, an RAO must also identify those categories ofrecords that are not within its respective agency's possession. See G. L. c. 66, § lO(b)(ii). Based on the EOEEA's response, it remains unclear if the EOEEA possesses responsive records; specifically, the EOEEA has not

Tori T. Kim, Esq. SPR18/1655 Page 5 November 26, 2018 confirmed whether it possesses records responsive to this portion of the request, but claims Exemption (c) applies to records responsive to Request #1 (d). With respect to its Exemption (c) claims, the EOEEA's response did not contain the specificity required in a denial of access to public records. Instead, the EOEEA's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. The EOEEA is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the EOEEA did not satisfy its burden in responding to this records request. The EOEEA is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion The EOEEA must provide another response to Mr. Rocheleau that provides additional information regarding whether the EOEEA possesses responsive records. The EOEEA must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... " See 950 C.M.R. 32.06(3). If the EOEEA intends to redact any information from the records or withhold records in their entirety, it must claim an exemption with specificity. See G. L. c. 66, § lO(b)(iv); Flatley, 419 Mass. at 511. Accordingly, the EOEEA is ordered to provide Mr. Rocheleau 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau