Andrew Brownsword v. Department of Energy Resources (SPR 20200637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2020 SPR20/0637 Rachel Evans Deputy General Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Evans: I have received your petition on behalf of the Department of Energy Resources (Department) seeking an extension of time to furnish copies of a requested record, or any portion thereof. G. L. c. 66, § 10(c); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. Specifically, Andrew Brownsword requested various categories of records pertaining to the Department’s administration of the MOR-EV program. The Department has provided a response to several portions of the request, leaving only one, a request for survey data, subject to this petition. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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 SPR20/0637 Page 2 April 8, 2020 G. L. c. 66 § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Please note, a business day does not include a weekday where a custodian’s office is unexpectedly closed. 950 C.M.R. 32.02. Current petition In its April 3, 2020 petition, the Department requests “an extension of 20 business days from the date of the Supervisor’s ruling on this petition, in order to provide a response to question #3” of the request. The Department explains that as a result of the Governor’s orders related to the COVID-19 emergency, “DOER’s physical offices have been closed from March 16, 2020 to the present.” Additionally, the Department notes that “[o]n March 31, Governor Baker issued an order extending the closure of non-essential businesses and organizations for in- person operations until May 4, 2020.” In support of its request for an extension of time, the Department explains that “the proposed extension is warranted because the magnitude and complexity of the Request, under the current State of Emergency, will unduly burden the other responsibilities of this office such that we are unable to complete our productions by the statutory deadline set forth in G.L. c. 66, § 10(a). Specifically, under the current State of Emergency, DOER staff is prohibited from its physical office and has limited access to both paper and electronic records.” I find that in light of the inability of the Department to produce a response to this portion of the request without the extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the Department an extension of 20 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi). Conclusion For the reasons discussed above, the Department is granted an extension of 20 business days to produce responsive records. The records must be provided consistent with the Public Records Law and its Access Regulations and as soon as practicable. The requestor may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. -- 32.08(1). Additionally, the requestor may seek judicial review of this decision by commencing a civil action in the superior court under G. L. c. 66, § 10A(c).

Rachel Evans SPR20/0637 Page 3 April 8, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword