Karen Johnson v. Executive Office of Energy and Environmental Affairs (SPR 20240177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0177 Elizabeth J. 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 Karen Johnson 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 September 7, 2023, Ms. Johnson requested: [1.] …[a]ll emails or attachments from [an identified individual] or her designee to or copied to [identified individuals] regarding the Northeast Metropolitan Regional Vocational School. [2.] [a]ttachments from the February 6, 2023 email from [an identified individual] to [an identified individual] titled: “Re: detailed notes on first ask the gov. msg.” [3.] [c]opies of, or a functioning link to the 278 comments submitted on the citizens petition for the Northeast Metropolitan Regional Vocational School and referred to in [sic] March 23, 2023 ruling by [an identified individual]. Previous Appeal The requested records was the subject of a previous appeal. See SPR 23/2372 Determination of the Supervisor of Records (October 19, 2023). In my October 19th determination, I directed the Office to provide a response to the requestor. The Office provided responses on November 3, 2023, November 17, 2023, December 20, 2023, December 22, 2023 and December 29, 2023. Unsatisfied with the Offices’ responses, Ms. Johnson petitioned this office and this appeal, SPR24/0177, was opened as a result. 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 J. Doherty, Esq. SPR24/0177 Page 2 February 2, 2024 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 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 Office’s November and December responses In its November 3, 2023 response, the Office stated, “I apologize for the delay. I was out of the office for a period of time, but I am back now. I will work on a complete response to send you by November 17.” On November 17, 2023, the Office provided a link to comments submitted via an online portal responsive to part 3 of Ms. Johnson’s request. The Office noted, “[t]here were additional comments submitted via email that do not appear on this website. Accordingly, I have broadened the email search request to include public comments provided via email.” The Office also offered to provide documents responsive to the first and second parts of Ms. Johnson’s request based on a similar, broader request and stated, “[o]therwise I will endeavor to complete the segregation by December 15th.” On December 20, 2023, the Office stated, “I responded to part of your request and hoped to complete production by December 15th. I was unable to finish compiling your records, however, I am nearly there and hope to finish record production by the end of the week.” On December 22, 2023, the Office again provided the link to comments submitted via an online portal responsive to part 3 of Ms. Johnson’s request that was provided on November 17th. On December 29, 2023, the Office stated, “I was hoping to complete production today; however, we will need additional time to process your request. We will endeavor to complete your request by next Friday, January 5.”

Elizabeth J. Doherty, Esq. SPR24/0177 Page 3 February 2, 2024 Current Appeal In her appeal, Ms. Johnson states, “Jan 19, 2024 – Me to SEC – not done For the third time I request to prioritize request #2 below, then #1, then #3…Please do something to make sure this request is fulfilled.” 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 Ms. Johnson submitted her request on September 7, 2023, it is unclear why the Office has not provided the outstanding 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Consequently, I find the Office 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 Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Ms. Johnson 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. Ms. Johnson may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Elizabeth J. Doherty, Esq. SPR24/0177 Page 4 February 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Karen Johnson