Christopher Michaud v. Massachusetts Department of Environmental Protection (SPR 20222919)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2023 SPR22/2919 Rachel Cohen Records Manager Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Christopher Michaud appealing the response of the Department of Environmental Protection (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 30, 2022, Mr. Michaud requested records related to the Nitrogen Sensitive Area Subcommittee, responses by the Department to comments made by two identified individuals, leachate, groundwater and storm water runoff testing data, and copies of any groundwater discharge permit. Previous Appeal This request was the subject of a previous appeal. See SPR22/2580 Determination of the Supervisor of Records (November 30, 2022) and SPR22/2801 Determination of the Supervisor of Records (December 8, 2022). In my December 8th determination, I closed the appeal where I learned the Department had provided Mr. Michaud with a response on December 7, 2022. Unsatisfied with the Department’s December 7th response, Mr. Michaud petitioned this office and this appeal, SPR22/2919, 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 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 SPR22/2919 Page 2 January 6, 2023 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. 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 December 7th Response The Department provided a response on December 7, 2022. In an email dated December 8, 2022, Mr. Michaud states, “[l]ate in the day on December 7, 2022, the digital records were finally provided by delivery from Fed Ex in an envelope dated December 6, 2022.” Current Appeal In his appeal, Mr. Michaud asserts: In summary, after review of the records provided on December 7, 2022 (produced by MassDEP after filing a second appeal), I discovered that one item was not responded to by MassDEP. The item that was not responded to was item 3 (third bullet in my initial email that is attached and labeled exhibit 29). MassDEP failed to respond to the item in their Good Faith Estimate that is attached and labeled as Exhibit 30, and MassDEP did not provide any responsive record in the records provided on December 7, 2022 nor did they advise that no records exists. Upon discovery I reached out to records access staff from MassDEP and have not received any reply from the two officials. I do have a confirmation of delivery to both. Based on the Department’s response, in conjunction with Mr. Michaud’s appeal, it is unclear if the Department possesses additional records responsive to the request. 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). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Mr. Michaud with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Rachel Cohen SPR22/2919 Page 3 January 6, 2023 Regulations within ten 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, Manza Arthur Supervisor of Records cc: Christopher Michaud