Sandy Rodriguez v. Department of Conservation and Recreation (SPR 20231457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2023 SPR23/1457 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114-2199 Dear Mr. Tencellent: I have received the petition of Sandy Rodriguez appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2023 and again on May 12, 2023, Ms. Rodriguez requested: [1] All data and records… that involve the planning of the event “A Quarryman’s Tales & Tools - Demonstration”; [2] All data and records…that involve inviting the [named individuals] and/or Rockport Cut Granite to the event; [3] All data and records…that involve the creation of the official program; [4] All data and records…that involve the cancelation (dis-invitation) of [named individuals] and/or Rockport Cut Granite from the event; [5] All data and records…that mention, comment or otherwise involve [named individuals] and/or Rockport Cut Granite from 6/1/22 -10/1/22; [6] All data and records…that discusses [named individuals] and/or Rockport Cut granite. Prior Appeal The responsive records were the subject of a prior appeal. See SPR23/1161 Determination of the Supervisor of Records (Supervisor) (June 13, 2023). I closed SPR23/1161 after the Department provided Ms. Rodriguez with a response on June 1, 2023. Unsatisfied with the Department’s response, Ms. Rodriguez petitioned this office and the current appeal was opened. 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

Michael Tencellent SPR23/1457 Page 2 July 10, 2023 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) (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. Attorney 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 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 June 1st response In its June 1, 2023 response, the Department indicates, “in response to your request the [Department] conducted a diligent search which identified responsive records. The responsive records are attached. The [Department] is not asserting any exemptions from the [P]ublic [R]ecords [L]aw, in whole or in part, over the responsive records. All records identified as responsive to this request are included in this production. Please note that the responsive records include images (attachments to emails?) that may be considered offensive. Those records are in files labeled Rockport Stuffing Post Admin and Rockport Post Stuffing Post 1-5.” In her petition, Ms. Rodriguez asserts: …many of the items are not present in Mr. Tencellent’s [letter] or document package. On specific line in the [Public Records] request was [p]lease provide all data and records, including emails and text messages that involve the [cancellation] [dis-invitation] of [two identified persons] and/or Rockport Cut Granite from the event. The email records that Mr. Tencellent provided make references to other emails, slack channel messages and phone calls which involve the [cancellation] [dis- invitation] of [two identified persons] and/or Rockport Cut Granite from the event. I believe these records exist, but were not turned over. [I] am asking for copies of these records.

Michael Tencellent SPR23/1457 Page 3 July 10, 2023 Based on Ms. Rodriguez’s June 23rd petition, in conjunction with the Department’s response, I find the Department must clarify if it possesses additional records responsive to the above request. Particularly, the Department must clarify whether it possesses the specific records Ms. Rodriguez indicates she did not receive in the June 1st production of records. 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). In accordance with the Public Records Law, 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). Conclusion Accordingly, the Department is ordered to provide Ms. Rodriguez with a response to her request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Sandy Rodriguez