Margie Mullen v. Massachusetts Department of Environmental Protection (SPR 20222020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2022 SPR22/2020 Rachel M. Cohen Primary Records Access Officer Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Margie Mullen appealing the response of the Department of Environmental Protection (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 16, 2022, Ms. Mullen requested measurements records for debris removal from a named address. On August 22, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Mullen petitioned this office and this appeal, SPR22/2020, 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 or redacted portion of the responsive record. The Department’s August 22nd response On August 22, 2022, the Department provided Ms. Mullen with a response stating that 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 M. Cohen SPR22/2020 Page 2 September 16, 2022 “[w]e have no further responsive records.” Current Appeal In her appeal, Ms. Mullen suggested that the Department had responsive records to her request. In an email dated September 6, 2022, the Department confirmed that there are no additional responsive records to Ms. Mullen’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the Department does not possess any additional records responsive to Ms. Mullen’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Mullen is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Margie Mullen