Pat Brown v. Department of Conservation and Recreation (SPR 20201398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2020 SPR20/1398 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Patricia Brown appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 21, 2020, Ms. Brown requested: ”1) A copy of DCR contract P19-3295-D1A (Mass Central Rail Trail – Wayside), including any documents such as RFP responses or other explanatory material provided by the vendor and included by reference 2) The amount for which this contract was approved, and the vendor to which it was awarded.” Unsatisfied with the response, Ms. Brown appealed and SPR20/1398 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Michael Tencellent SPR20/1398 Page 2 August 31, 2020 The Department’s August 14th response The Department responded on August 14th and provided a website link and stated, “[t]he full contract is available above.” Current Appeal In her August 17th email following receipt of the Department’s August 14th response, Ms. Brown stated, “I don’t see it here…” Despite the Department’s response, it remains unclear what responsive records the Department possesses. The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Brown’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Order Accordingly, the Department is ordered to provide Ms. Brown 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: Patricia Brown