Richard Maximus Strahan v. Department of Fish and Game (SPR 20202141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2020 SPR20/2141 Beverly Vucson, Esq. General Counsel Department of Fish and Game 251 Causeway Street, Suite 400 Boston, MA 02116 Dear Attorney Vucson: I have received the petition of Richard Maximus Strahan appealing the response of the Department of Fish and Game (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Strahan requested: 1. Correspondence from May 1, 2020 to the present between any Massachusetts state employee and any employee of National Oceanic and Atmospheric Administration (NOAA) mentioning a possible incidental take permit being applied for in regards to endangered sea turtles becoming entangled in fishing gear licensed and regulated by the Division of Marine Fisheries; 2. A document that indicates which Massachusetts state employees have been designated to serve on the Incidental Take Permit committee that was referenced in the October 16, 2020 status report filed in the civil action M.A.X. v. Secretary, E.O.E. & E.A. currently active in the US District Court for the District of Massachusetts; and 3. Any document created after May 1, 2020 signed and/or authored by Kathleen Theoharides and/or Ronald Amidon, and/or Mark Tisa that uses either the term “sea turtle” and/or the term “right whale.” On November 3, 2020, the Department provided Mr. Strahan with a response indicating the withholding of Request Number 1 under Exemption (d) due to a deliberative process pertaining to an application for an Incidental Take Permit that has not been approved at the present time. The Department provided Mr. Strahan with the responsive status list (docket) pertaining to the ongoing litigation in federal court. With regard to Mr. Strahan’s Request Number 3, the Department provided him with one email, and withheld one other email under the common law attorney-client privilege. As a result of the Department’s withholding of the records pertaining to his Request 1, Mr. Strahan petitioned the Supervisor of Records. 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

Beverly Vucson SPR20/2141 Page 2 November 18, 2020 After this appeal was opened, this office learned that the records requested pertain to active litigation filed by Mr. Strahan in the U.S. District Court, District of Massachusetts, against the Department and several other agencies. The Department informed this office that the litigation is still active and on-going. See Strahan, Plaintiff v. Secretary, Massachusetts Office of Energy and Environmental Affairs, et al, Defendants, CIVIL ACTION 1:19-cv-10639-IT (U.S. District Court, District of Mass.). Active litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion In light of the complaint filed in U.S. District Court, I decline to opine on these records at this time. See 950 C.M.R. 32.08(2)(b). I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan