Kelly Gallagher v. Massachusetts Department of Agricultural Resources (SPR 20201304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2020 SPR20/1304 Carol Szocik Records Access Officer Department of Agricultural Resources 251 Causeway Street Boston, MA 02114 Dear Ms. Szocik: I have received the petition of Kelly Gallagher appealing the response of the Department of Agricultural Resources (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gallagher requested correspondence among Department employees regarding a proposed solar project in Norton, MA from February 1, 2020 to the present. The Department responded on July 2, 2020, stating that it does not possess records responsive to this request. Unsatisfied with this response, Ms. Gallagher petitioned this office and this appeal, SPR20/1304, was opened as a result. Current Appeal In its July 2, 2020 response, the Department states that “[a]fter conducting a reasonable search, the Department of Agricultural Resources did not locate any records responsive to your request.” In her appeal petition, Ms. Gallagher disputes whether the Department possesses records, indicating that she is aware of emails regarding the project sent to the Department by her neighbor. Subsequent to the opening of this appeal, on August 17, 2020 the Department provided a supplemental response, producing a responsive email and indicating that it does not possess any additional responsive records. No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. The duty to comply with requests for records extends to 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

Carol Szocik SPR20/1304 Page 2 August 18, 2020 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). Accordingly, whereas the Department has informed Ms. Gallagher that it does not possess any additional responsive records, I will consider this administrative appeal closed. If Ms. Gallagher is not satisfied with the result 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: Kelly Gallagher