Meghan Perry v. Division of Fisheries & Wildlife (SPR 20181882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 13, 2018 SPRlS/1882 Emily Holt Division of Fisheries & Wildlife One Rabbit Hill Road Westborough, MA O1 5 81 Dear Ms. Holt: I have received the petition of Meghan Perry appealing the response of the Division of Fisheries & Wildlife (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Perry requested "all correspondence between [identified individuals], Natural Heritage, the State of Massachusetts, the Town of Nantucket, the town's representatives and Surfside Crossing LLC et al including developers and their representatives." The Division responded to her request by providing responsive records and indicating other responsive records were withheld pursuant to Exemption (d). G. L. c. 4, § 7(26)(d). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the 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

Emily Holt SPR18/1882 Page2 December 13, 2018 Additional 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Although the Division provided Ms. Perry with some responsive records, Ms. Perry claims that records related to an identified public records request have not been provided. Ms. Perry requests that the Division "take another look at the records to produce the [public records request] records and any other records that were missed." Based on Ms. Perry's petition for appeal, it is unclear whether the Division possesses additional responsive records. While this appeal was pending, this office learned that the Division intends to conduct another search for responsive records and provide another response to Ms. Perry. Order Accordingly, the Division is ordered to provide Ms. Perry 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: Meghan Perry