Christine Rioux v. Executive Office of Energy and Environmental Affairs (SPR 20230778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2023 SPR23/0778 Elizabeth Doherty, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Christine Rioux appealing the response of the Executive Office of Energy and Environmental Affairs (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2023, Ms. Rioux requested “…any and all background documents, policy directives or memos, presentations, and internal correspondence that will clarify the MEPA regulations and your interpretations of them regarding the following issues: 1. Land alteration – what constitutes land alteration and what does not. 2. Impervious and previous surface – what constitutes both and how to calculate and interpret net new impervious surface. 3. Fail Safe criteria 11.04(1)(b)(1) and (2) – why are only ‘types’ of damage that did not exist prior to 1998 considered, rather than actual damage; the basis and original intent of the fail safe regulations described in detail; examples of damage to the environment that have met either of these two criteria.” The Office provided responses on March 31, 2023; April 6, 2023; and April 21, 2023. Unsatisfied with the Office’s responses, Ms. Rioux petitioned this office and this appeal, SPR23/0778, 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 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

Elizabeth Doherty, Esq. SPR23/0778 Page 2 May 1, 2023 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 Office’s March 31st response On March 31, 2023, the Office stated the following: I want to clarify the records that you are seeking. Are you looking for all documents and correspondence pertaining to Northeast Metro Tech Vocations School? Or only the documents and correspondence related to both Northeast Metro Tech Vocational School and ‘land alteration,’ ‘impervious and previous surface,’ and ‘fail safe criteria?’ Ms. Rioux responded and provided the Office with further clarification regarding her request. The Office’s April responses On April 6, 2023, the Office stated the following: As we are searching for these documents, I noticed that your request is very broad and could result in many, many documents, which may incur a processing fee. Would you like to narrow the timeline for background documents requested under #2? Ms. Rioux responded and narrowed the timeline for background documents requested under item 2 of her request to those “…still currently used, considered [and] referenced in rulings.” On April 21, 2023, the Office stated the following: I am working with the relevant parties to make sure we can identify the records you are searching for. I will provide a further update on or before April 28th.

Elizabeth Doherty, Esq. SPR23/0778 Page 3 May 1, 2023 Based on the Office’s response, it is unclear if the Office possesses any 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent that the requested records exist, I find the Office 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). Provide timeframe G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Ms. Rioux’s request was submitted on March 29, 2023, the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Ms. Rioux 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. Ms. Rioux may appeal the substantive nature of the Office’s response within 90 calendar days. See 950 C.M.R. 32.08(1).

Elizabeth Doherty, Esq. SPR23/0778 Page 4 May 1, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Christine Rioux