James W. Marsh v. Massachusetts Water Resources Authority (SPR 20202058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2020 SPR20/2058 Angela Atchue, Esq. Associate General Counsel Massachusetts Water Resources Authority Charlestown Navy Yard 100 First Avenue, Building 39 Boston, MA 02129 Dear Attorney Atchue: I have received the petition of Attorney James Marsh appealing the response of the Massachusetts Water Resources Authority (Authority/MWRA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 13, 2020, Attorney Marsh requested two categories of records, including “…a list of the names of all current technicians for each ‘MWRA approved company’ conducting SIU wastewater sampling…” as well as “…all chain of custody records for the SIU wastewater sampling…” The Authority responded by providing responsive records. Claiming to not have received all responsive records, Attorney Marsh petitioned this office and this appeal, SPR20/2058, 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(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. 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

Angela Atchue, Esq. SPR20/2058 Page 2 November 5, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal, Attorney Marsh states “…MWRA sent us a series of emails with materials attached. However, MWRA’s response did not provide all the requested information within its care, custody and control.” Attorney Marsh is appealing the first part of his request related to “…a list of the names of all current technicians for each ‘MWRA approved company’ conducting SIU wastewater sampling…” Attorney Marsh contends the records provided is “not responsive to the request. Subsequent to the opening of this appeal, the Authority emailed this office on October 30, 2020, indicating “[t]o date, no documents have been denied to Attorney Marsh by MWRA, but instead provided in compliance with the provisions of the Massachusetts Public Records Law. Further, despite not being obligated to do so under the Public Records Law, where a specific form of document does not exist, MWRA staff created and provided Excel spreadsheets to Attorney Marsh with the requested information after verifying such was agreeable with him.” The Authority also indicates “I called Attorney Marsh and left a voice message this afternoon to discuss his latest request for additional documents to a previously responded to and closed-out public records request.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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).

Angela Atchue, Esq. SPR20/2058 Page 3 November 5, 2020 Conclusion In light of the Authority’s response, I find the Authority has responded to the request in compliance with the Public Records Law and its Regulations. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: James Marsh, Esq.