Grace Ferguson v. Department of Conservation and Recreation (SPR 20220204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0204 Michael Tencellent Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Grace Ferguson, of WBUR, 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). Ms. Ferguson requested “[e]lectronic log of internal affairs complaints/investigations against sworn officers of the Department of Conservation and Recreation as far back as you maintain the log in your current computer system.” Prior Appeal The requested records were the subject of a prior appeal. See SPR21/2070 Determination of the Supervisor of Records (August 30, 2021). On January 31, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Ferguson petitioned this office and this appeal, SPR22/0204, 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

Michael Tencellent SPR22/0204 Page 2 February 14, 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 January 31st response In its January 31st response, the Department stated “[w]e don’t keep any of the responsive documents you are asking for. Therefore, we have no responsive documents to your request.” Current Appeal In her current appeal, Ms. Ferguson, stated, “… the department said it has no records, but has declined to answer any follow up questions, so it is unclear whether that is actually the case.” Ms. Ferguson further stated, “[w]e asked for an electronic copy of a log of internal affairs investigations against its officers. It is unclear whether the department has a paper log it could provide instead. Or whether it tracks the logs in an internal database, which it could instead provide.” Records in existence 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). In light of the issues raised in Ms. Ferguson appeal regarding the existence of responsive records, I find it is unclear whether responsive records exist. The Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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: Grace Ferguson