Colman Herman v. Department of Conservation and Recreation (SPR 20221910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2022 SPR22/1910 Michael Tencellent, Esq. Records Access Officer Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 30, 2022, Mr. Herman requested “… copies of any and all communications related to DCR ‘working to better align internal and external resources to advance the recommendations that were made’.” Previous appeal This request was the subject of a previous appeal. See SPR22/1766 Determination of the Supervisor of Records (August 15, 2022). The Department responded on August 17, 2022. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/1910 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 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. 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 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, Esq SPR22/1910 Page 2 September 1, 2022 or redacted portion of the responsive record. The Department’s August 17th Response In its August 17, 2022 response, the Department stated, “I read the order that to say we will ‘continue to communicate to facilitate providing records more efficiently and affordably’. Perhaps after reviewing the document that can be found at the [identified] website … you will be able to suggest some modifications to your request.” Current appeal In his appeal, Mr. Herman asserts, “[i]t is my expectation that you will offer suggestions to me for narrowing my public records request, pursuant to the attached order.” I encourage Mr. Herman and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Herman may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman