Andrew Brownsword v. Massachusetts Department of Energy Resources (SPR 20200737)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2020 SPR20/0737 Rachel Evans, Esq. 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). Mr. Brownsword requested: 1. “ANY and ALL materials representing communications (emails, meeting or discussion notes, text messages) about Mr. Lauwer's specific proposal1 between and among DOER and EEA staff. 2. ANY and ALL “statistical tabulations” or spreadsheets created to pair up with this proposal that would show the impact that approving the “option” noted above would have on the MOR-EV budget, including sensitivity analysis that would show the impact of Mr. Lauwer’s original proposal to offer a $1,500 retroactive rebate and offering the $2,500 rebate level that IS EXPLICITLY WRITTEN INTO SECTION 95 OF THE SUPPLEMENTAL BUDGET. 3. ANY and ALL material representing deliberations and final determinations made by DOER and EEA Legal staff on the proposal noted above AND the final decision to only allow vehicles purchased on or after 1/1/2020 to be rebated.” The Department responded to Mr. Brownsword on May 5, 2020, indicating that it does not possess responsive records. Unsatisfied with this response, Mr. Brownsword petitioned this office and this appeal, SPR20/0737, 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 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 SPR20/0737 Page 2 May 20, 2020 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 May 5, 2020 response, the Department indicates that it does not possess records responsive to Mr. Brownsword’s request. The Department states that it “consulted with staff members and conducted a search of DOER records to which DOER currently has access. Please note that this search did not include any records of the Executive Office of Energy and Environmental Affairs (‘EEA’), over which DOER has neither custody nor control.” The Department concludes that after an extensive search, it located no responsive records. 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword