Glen Ayers v. Department of Conservation and Recreation (SPR 20190708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2019 SPR19/0708 Ms. Bridget Connelly, Esq. Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Glen Ayers appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ayers requested various records related to the "MA Administrative Procedures Act and Clear Identification of Process Available to the Public Under 801 CMR 1: Standard Adjudicatory Rules." The request was broken down into subsections A. through G.: "A. -any determination or decision document, legal opinion, analysis, or other records that relate to the DCR's requirement to comply with the Global Warming Solutions Act, as it relates to this project or the overall forest degradation and deforestation (so-called "forest management") program being orchestrated by the DCR on publicly-owned lands. B. -any records or documentation that pertains to the administrative procedure(s) available to the public concerning commenting on, being involved in, or participating in the planning process for the management of forest lands under the jurisdiction of DCR, including but not limited to the administrative appeal process or other options available pursuant to 801 CMR 1. C. -any documents that pertain to the requirements of DCR to accept public comments and public input into the forest management process, and any records which explain how public comments are reviewed, considered, treated, dismissed, ignored, belittled, or rejected during the agency's internal review process. D. -any documents or records that provide a legal opinion of the planning process that DCR follows during the initiation through implementation of the forest management activities conducted on publicly-owned lands. E. -any documents or records that pertain to the application of MEP A thresholds or categorical exclusions relating to the analysis of environmental impacts of forest degradation or deforestation (so-called "forest management") activities conducted by DCR on publicly-owned lands, including compliance with analysis and disclosure of 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

Department of Conservation and Recreation SPR19/0708 Page 2 April 18, 2019 climate change, global warming, or GHG emissions. F. -any records or documents that disclose the result of a GHG accounting or climate change analysis for the proposed project or for DCR as an agency, as it relates to forest degradation or deforestation (so-called "forest management") activities conducted by DCR on publicly-owned lands. G. -any records or documents that pertain to the MEP A defined concept of segmentation of related projects or activities associated with the DCR forest degradation or deforestation (so-called "forest management") activities being planned and implemented by DCR on publicly-owned lands." Previous Appeals This request has been the subject of a previous appeal. See SPRl 9/054 7 Determination of the Supervisor of Records (March 21, 2019). Mr. Ayers appealed the partial nonresponse of the Department to his response. I found that the Department provided Mr. Ayers a response to his request. Specifically, Attorney Connelly indicated that "the Department conducted a diligent search; however, no responsive records were identified." Unsatisfied with the Department's response, Mr. Ayers petitioned this office pursuant to 950 C.M.R. 32.08(1) and this appeal, SPR19/0708 was opened. Current Appeal In his appeal, Mr. Ayers claimed that "it is unreasonable to accept that within the entire DCR Agency none of the requested information exists in any format, not an email, guidance document, policy directive, legal opinion, Executive Order, or even a single post-it note." Mr. Ayers pointed out that, with respect to items A., E., and F. of his request, the "DCR, as a State Agency is subject to the Global Warming Solutions Act (GWSA). As such they would have conducted a 'baseline' analysis of their Greenhouse Gas (GHG) emission to establish their 1990 equivalent levels and then prepare a plan to reduce their GHG emissions levels, by 25% by 2020." In order to be "in compliance with a major legislative requirement," Mr. Ayers asserted that the Department "very likely" is in possession of records responsive to his request. With respect to item B., Mr. Ayers pointed out that "Secretary Bowles issued an executive order referred to as the 'Commonwealth Forrest Heritage Plan' which require that the [Department] conduct forest logging operations with robust public input while making all aspects of the planning process transparent and accessible to the public. As a result of this EO, [the Department] must have taken various steps internally to comply with the direction given and then made documented efforts to create a process that met the intent of the EO ... but the [Department] claims to not even have a copy of the EO and not a single record of how they complied with the direction contained in the EO."

Department of Conservation and Recreation SPR19/0708 Page 3 April 18, 2019 Mr. Ayers also noted that "items C. and D. pertain to the internal [Departmental] planning process and request that the [Department] disclose the procedures that [the Department] uses from the initiation stage through the analysis and decision stages for logging projects on Public Lands" and that likely, the Department "employs standard practices and processes, guidelines, directives, schedules, procedure manuals, templates, databases, communication systems, and other means to conduct the internal work that the [Department] must do in order to prepare the documentation for each logging plan." In light of the arguments above, and the voluminous nature of his request, Mr. Ayers asserts that despite the Department's claim that they had performed a diligent search and found no responsive records, "numerous records exists that are responsive to [his] request." In subsequent communications, Mr. Ayers provided additional evidence for his claims, including quotes from "a presentation given by William H. Hill, DCR State Forest Lands Manager at the 10/12/2018 DCR Forest Stewardship Council meeting held in North Adams" in which "Mr. Hill discusses 'guidelines that we have,' ... announces that 'we have done analyses,' ... and discloses that the DCR has run 'a whole series of forestry models"' as well as quotes from Julia O'Leary, Council in the Executive Office of Energy and Environmental Affairs, referencing his request's "complexity and magnitude." 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). 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). In light of the issues raised in Mr. Ayers' appeal regarding the existence of responsive records, the Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). If such records were destroyed, the Department must demonstrate whether it followed proper records retention protocol. Please note, the Department must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § § 1, 8, 13, 15. I advise the Department to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.

Department of Conservation and Recreation SPR19/0708 Page 4 April 18, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Ayers with a response provided in a manner 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: Glen Ayers