Ed Stockman v. Massachusetts Department of Agricultural Resources (SPR 20222223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2022 SPR22/2223 Raquel Loayza Primary Records Officer/Paralegal Massachusetts Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Loayza: I have received the petition of Ed Stockman appealing the response of the Massachusetts Department of Agricultural Resources (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2022, Mr. Stockman requested, “[t]he 5 most recent copies of the annual reports submitted by the Mass Dept. of Agricultural Resources to the clerks of the Senate and the House of Representatives per MGL Part I, title XIX, Chapter 132B…” On September 2, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Stockman petitioned this office and this appeal, SPR22/2223, 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(d)(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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be 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

Raquel Loayza SPR22/2223 Page 2 October 17, 2022 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 September 2nd response In the Department’s September 2, 2022 response, it stated the following: The Massachusetts Department of Agricultural Resources (“MDAR”) has reviewed its records and is not in possession of responsive records. We are in possession of MDAR Annual Reports which provide a comprehensive account of the agency, including information regarding the Pesticide Program. The MDAR Annual Reports can be viewed on our website at the following link . . . Current Appeal In his current appeal, Mr. Stockman stated, “[t]he link sent in the email is to the MDAR website which does not contain the requested annual reports.” In an email dated, October 7, 2022, the Department confirmed that there are no responsive records to Mr. Stockman’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 records responsive to Mr. Stockman’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Stockman 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).

Raquel Loayza SPR22/2223 Page 3 October 17, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Ed Stockman