Colman Herman v. Department of Environmental Protection (SPR 20220310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2022 SPR22/0310 Kathleen Delaplain, Esq. Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of Colman Herman appealing the response of the Department of Environmental Protection (Department/DEP) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2022, Mr. Herman stated: The records you produced ended on January 14, 2022. There were two different drafts of responses to me in the production (see pages 82 and 85), but they were never issued to me. Were there any drafts of responses to me prepared after January 14, 2022? If there were, please provide me with copies, along with any narratives indicating that they were not to be sent to me. The Department responded on February 7, 2022, indicating there are no responsive records. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/0310, was opened as a result. While this appeal was pending, the Department provided supplemental responses on February 8, 2022 and February 11, 2022. 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 agency or municipality 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. 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

Rachel Cohen SPR22/0310 Page 2 February 18, 2022 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. 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 its February 7, 2022 response, the Department stated that it did “. . . not have any additional records responsive to you. . . . The only two draft responses that we had to your inquiry were on those pages you referenced . . . and therefore have already been provided to you.” In his appeal petition, Mr. Herman states: 3) The records that were previously produced ended on January 14, 2022. [The Department] did not issue those records until February 4, 2022. I believe that responsive records do indeed exist for the interim period of January 15, 2022 to February 4, 2022, and that DEP did not conduct a through [sic] search for responsive records for that interim period. 4) Accordingly, please order DEP to conduct a through [sic] scratch [sic] for responsive records for the period January 15, 2022 to February 4, 2022. On February 8, 2022, the Department provided a supplemental response indicating that it “ha[s] now checked twice with our Press Secretary . . ., whether or not there was another draft response to Mr. Herman’s press inquiry, one that we have not yet provided. . . . The Press Secretary does not have custody or control of the . . . requested record, nor is he aware of it existing anywhere else. He should not be compelled to produce a record or create a record that he does not have. . . .” In its February 11, 2022 response, the Department reiterates that “[it] has looked everywhere reasonable likely to find responsive records, including doing an IT search of our employee’s email, and nothing came up to indicate that there would be responsive records anywhere else. We’ve produced the responsive documents.” No duty to create records Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Please be advised, 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

Rachel Cohen SPR22/0310 Page 3 February 18, 2022 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Department does not possess records responsive to Mr. Herman’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman