Christopher Michaud v. Department of Environmental Protection - Bureau of Water Resources (SPR 20230024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2023 SPR23/0024 Victoria Wu Program Coordinator II Department of Environmental Protection 100 Cambridge Street Boston, MA 02114 Dear Ms. Wu: I have received the petition of Christopher Michaud appealing the response of the Department of Environmental Protection (Department/MassDEP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2022, Mr. Michaud requested: [1] Names of individuals on the Nitrogen Sensitive Area Subcommittee of MassDEP[;] [2] Names of individuals and titles or organizations or department they represent by being a member to the Nitrogen [S]ensitive Area Subcommittee of MassDEP[;] [3] Notes of all members for all meetings of the Nitrogen Sensitive Area Subcommittee of MassDEP[;] [4] Notes shall include handwritten, typed, electronic of any form and emails between members and anyone else and shall not be limited to members who are state employees[;] [5] Any documents from the subcommittee or the members regarding the proposed draft regulations as they pertain to 310 CMR 15.00 and 314 CMR 21.00[.] On January 5, 2023, the Department responded. Unsatisfied with the Department’s January 5th response, Mr. Michaud petitioned this office and this appeal, SPR23/0024, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Victoria Wu SPR23/0024 Page 2 January 23, 2023 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. 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 January 5th Response In its January 5, 2023 response, the Department states, “[y]our check has been received and processed by Revenue, and we have started working on your public records request. I will reach out when we have an update.” Current Appeal In his appeal, Mr. Michaud asserts, “[o]nce again I am appealing the failure of MassDEP to provide records within the requisite time frame as noted below…. On January 6, 2023, no records from MassDEP have been provided and it is now the eleventh business day from receipt of the fee[.]” Under the Public Records Law, a records custodian is not required to produce responsive records until receipt of payment of a reasonable fee. G. L. c. 66, § 10(a)(iii). Once fees are paid, a records custodian must provide the responsive records. Where the Department has received payment of the reasonable fee, the Department must provide the responsive records. To the extent possible, the Department must provide responsive records on a rolling basis. 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 Regulations within ten (10) 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.

Victoria Wu SPR23/0024 Page 3 January 23, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Michaud Rachel M. Cohen