Laura Kiesel v. Department of Agricultural Resources (SPR 20220072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0072 Carol A. Szocik Primary Records Access Officer Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Szocik: I have received the petition of Laura Kiesel 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, on November 22, 2021 Ms. Kiesel requested Department reports from 2015 through 2021 regarding anti-coagulant rodenticide use. On November 24, 2021, the Department provided Ms. Kiesel with a response, and as a result, Ms. Kiesel petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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) (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

Carol A. Szocik SPR22/0072 Page 2 January 24, 2022 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. The Department’s November 24, 2021 response In its November 24th response, the Department asserts: “[t]he Department collects pesticide annual reports which are stored in our Boston office in boxes. We do not maintain an electronic system for this report. When requests of this type are made, we ask that the requestor make an appointment to come to the Boston office to search for the records they are requesting. The reports are not in any particular order, as there are thousands of these reports for each year. The Department maintains the reports for the last three years. At this time, due to COVID-19, state offices are still closed and we are unsure of when we will be able to return to our offices and what the guidelines will be for the public to come in, and therefore, cannot fulfill your request at this time. Please submit another request or inquiry at a later date.” As a result of the November 24th response, Ms. Kiesel contacted the Supervisor and this appeal was opened. In her petition, Ms. Kiesel states her objections as, “…[the Department does] not have their files in digital format and do not organize them and so can only be accessed by physically going to the office. However, since the offices are closed indefinitely due to the pandemic, that option isn’t allowed ether (but even if it was, I am disabled and would require the files to be mailed to me or offered to me digitally…).” The Department must clarify whether the Department will accommodate Ms. Kiesel’s request to have the records emailed or mailed to her. Records Management The Department informed Ms. Kiesel, “[t]he reports are not in any particular order, as there are thousands of these reports for each year. The Department maintains the reports for the last three years.” Please note that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). ----------------------------- The Department, as a custodian of records, has an affirmative duty to maintain, secure, and preserve governmental records throughout the records life cycle. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting

Carol A. Szocik SPR22/0072 Page 3 January 24, 2022 state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. In addition, training workshops on records management are conducted upon request. Order Accordingly, the Department is ordered to provide Ms. Kiesel with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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: Laura Kiesel