Ian Hunt-Isaak v. Department of Conservation and Recreation (SPR 20240141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2024 SPR24/0141 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Ian Hunt-Isaak 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 October 31, 2023, Mr. Hunt-Isaak requested, “[a]ll documents (including emails, texts, and any other communications) concerning the scheduling of pedestrian and bicycle access to Riverbend Park in Cambridge sent on or after August 8, 2023, including, but not limited to, documents and communications concerning whether or not to close Memorial Driver/Riverbend Park to vehicular traffic on Saturdays.” The Department provided a response on November 17, 2023, December 4, 2023 and December 18, 2023. Unsatisfied with the Department’s responses, Mr. Hunt-Isaak petitioned this office and this appeal, SPR24/0141, 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 order to withhold a requested record. See 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 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 SPR24/0141 Page 2 January 30, 2024 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. See 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 November 17th, December 4th and December 18th responses In its November 17, 2023 response, the Department stated, “I am still working on this.” On December 4, 2023, the Department stated, “I am hopeful to have this to you by the end of the week.” On December 18, 2023, the Department stated, “[t]his request is under review still.” Current Appeal In his appeal, Mr. Hunt-Isaak states, “[t]his remains unfulfilled despite DCR sending an email saying they would have it to me by December 8, more than a month ago.” Timeliness of providing records 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 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). Where Mr. Hunt-Isaak submitted his request on October 31, 2023, it is unclear why the Department has not provided the responsive 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). 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, I find the Department must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must

Michael Tencellent SPR24/0141 Page 3 January 30, 2024 provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Hunt-Isaak 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 the response to this office at pre@sec.state.ma.us. Mr. Hunt-Isaak may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ian Hunt-Isaak