Scott M. Duncan v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20181734)

l~l ' ' . ' ' • '<{t .~ The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 3, 2018 SPRlS/1734 Jennifer Sulla, Esq. Deputy General Counsel Executive Office of Energy and Enviromnental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Sulla: I have received the petition of Scott Duncan appealing the response of the Executive Office of Energy and Environn1ental Affairs (EOEEA) to a request for public records. G. L. c. 66, § JOA; see also 950 C.M.R. 32.08(1). Specifically, in his request Mr. Duncan referenced an identified officer and investigation and sought " ... a copy of the document that he submitted outlining the complaint." EOEEA responded on October 12, 2018 and Mr. Duncan appealed. 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 pottion of the responsive record. Appeal In its October li11 response, EOEEA asse1ts "[t]his office does not have records responsive to your request, as Officer Ahlborg did not submit a formal written complaint. In any event, all records relating to the investigation referred to in your request are exempt from One AshburtonPlace, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (61.7) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Jennifer Sulla, Esq. SPR18/1734 Page2 December 3, 2018 disclosure as personnel information under exemption 'c,' M.G.L. c. 4, § 7, cl. 26(c)." In his appeal petition, Mr. Duncan indicates "I want to appeal this on the grounds that I believe it not to be accurate," and he notes that" .. .investigators kept referring to documents." I find that EOEEA must confirm whether it possesses responsive records. 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, § lO(a)(ii), (b)(ii). To the extent that such records exist, and EOEEA intends to withhold them, it must explain with specificity how an exemption applies to withhold the records. See G. L. c. 66, § lO(b)(iv) (written response 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 ... "). Co11clusio11 Accordingly, EOEEA is ordered to provide Mr. Duncan with a response to the request, provided in a maimer consistent with this order, the Public Records Law and its Regulations within 10 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: Scott Duncan