Andrew Brownsword v. Department of Energy Resources (SPR 20200583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2020 SPR20/0583 Rachel Evans Deputy General Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Evans: I have received the petition of Andrew Brownsword appealing the response of the Department of Energy Resources (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2020, Mr. Brownsword requested seven categories of records related to the Department’s administration of the MOR-EV program, including “3. Information on the progress of discussions throughout 2019 with the legislature on adding funding for MOR-EV program in the 2020 budget or any supplemental budgets.” The Department responded to Mr. Brownsword’s request on March 5, 2020, providing responsive records. Unsatisfied with the Department’s response to the portion of his request noted above, Mr. Brownsword petitioned this office and this appeal, SPR 20/0583 was opened as a result. 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, § 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, § 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, § 10(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. G. L. c. 66, § 10(b)(iv). 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

Rachel Evans SPR20/0583 Page 2 April 8, 2020 Current Appeal Subsequent to the opening of this appeal, the Department provided a supplemental response to Mr. Brownsword on April 3, 2020, indicating that it does not possess records responsive to his request #3. In an April 6, 2020 email responding to the Department, Mr. Brownsword provided additional clarification, identifying the specific types of documents he seeks. Whereas this appeal was opened due to the Department’s nonresponse to request #3, in light of the Department’s response and Mr. Brownsword’s clarification I will consider this administrative appeal closed. The Department must provide Mr. Brownsword a new response to his April 6th clarification. Conclusion Accordingly, the Department is ordered to provide Mr. Bronsword with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Andrew Brownsword