Andrew Brownsword v. Department of Energy Resources (SPR 20200713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2020 SPR20/0713 Rachel Evans Deputy General Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Ms. 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). Mr. Brownsword requested: 1. “ANY and ALL communications regarding the MOR-EV program – emails, texts, meeting notes – between DOER / EEA staff members and Judith Judson, Will Lauwers, Scott Kjellberg, Sean Pierce, Patrick Woodcock and Representative Jonathan Hecht or Senator Michael Barrett or members of their staff during all of 2019. 2. The annual reports covering 2018 and 2019 provided by the DOER to the Legislature pursuant to Section 5 Chapter 25A of the General Laws establishing the DOER. 3. ANY and ALL formal notices provided to the Legislature or members thereof announcing the closing of the MOR-EV program. 4. ANY and ALL audit reports covering the MOR-EV program and its disbursements completed by the Commonwealth's auditor or any auditor or inspector general function residing within EEA or the DOER.” The Department responded to Mr. Brownsword on April 28, 2020, indicating that it does not possess responsive records. Unsatisfied with this response, Mr. Brownsword petitioned this office and this appeal, SPR 20/0713, 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 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 SPR20/0713 Page 2 May 14, 2020 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. Appeal In its April 28, 2020 response, the Department details its search process, explaining that it “consulted with numerous staff members and conducted an extensive and time-consuming search of DOER records to which DOER currently has access. This search included knowledge of and/or currently available employee notes, electronic files, and email records of both current and former DOER employees, for which it retained the services of Information Technology personnel.” The Department then informs the requestor that “[a]fter this extensive search under the current State of Emergency, DOER has identified no records responsive to the Request.” In a telephone conversation with a staff attorney of the Public Records Division on May 14, 2020, a representative of the Department confirmed that it does not possess records responsive to Mr. Brownsword’s request. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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, § 10(a)(ii), (b)(ii)-(iii). Accordingly, I find the Department has met its burden in responding to this request. Conclusion Whereas the Department has informed the requestor that it does not possess records responsive to his request, I will consider this administrative appeal closed. If Mr. Brownsword is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Rachel Evans SPR20/0713 Page 3 May 14, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword