Geraldine Mullaly v. Massachusetts Department of Environmental Protection (SPR 20231753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2023 SPR23/1753 Rachel Cohen Records Manager Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Geraldine Mullaly 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 June 12, 2023, Ms. Mullaly requested the following records relative to the Swansea Water District: [1.] [A]pplication to renew permits in the Narragansett Bay and Mount Hope Bay Shore Basin submitted to MassDEP by May 31, 2018, [2.] [C]onfirmation that the terms and conditions of the expiring permit continue in force and effect, [3.] [C]opy of MassDEP permit renewal, or denial of renewal application. Previous appeal This request was the subject of a previous appeal. See SPR23/1615 Determination of the Supervisor of Records (July 27, 2023). In my July 27th determination, I found that the Department intended on providing a written response to Ms. Mullaly. The Department provided a response on July 27, 2023. Unsatisfied with the response, Ms. Mullaly petitioned this office and this appeal, SPR23/1753, 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). 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 SPR23/1753 Page 2 August 11, 2023 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 July 27th response In its July 27, 2023 response, the Town provided Ms. Mullaly with a blank copy of the following documents: Department of Environmental Protection/Bureau of Resource Protection – Water Management Act Program/20-Year Permit Renewal Application and Department of Environmental Protection/Bureau of Water Resources – Water Management Act Program/ Notification of Water Use Restriction (PWS). The Town also provided a completed form for Notification of Water Use Restriction as well as the Department’s WMA Permit Renewal Public Comment Period – Narragansett Bay and Mount Hope Bay Shore Basin. Current appeal In her appeal, Ms. Mullaly states the following: I am unwilling to accept any statement that claims the requirements for filing the afore-mentioned documents is valid. I still require the completed/signed/stamped 20-Year Permit Renewal Application from the Swansea Water District. I therefore ‘appeal the substantive nature of the Department’s response.’ Based on Ms. Mullaly’s appeal and the Department’s response, it is unclear if the Department possesses additional records responsive to the request. Particularly, the Department must clarify if it possesses “. . . the completed/signed/stamped 20-Year Permit Renewal Application from the Swansea Water District.” 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). Consequently, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Ms. Mullaly with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Rachel Cohen SPR23/1753 Page 3 August 11, 2023 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. Ms. Mullaly may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly