Peggy L. Chaput v. Department of Environmental Protection (SPR 20240579)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2024 SPR24/0579 Rachel M. Cohen Records Manager Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Peggy L. Chaput appealing the response of the Massachusetts 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 January 20, 2024, Ms. Chaput requested the following in regards to the “HULL-Wetlands Superseding Determination of Applicability Lynn Ave/Newport Road letter”: [1.] A copy of all evidence gathered “through the use of MassGIS and an onsite inspection” in the 02/13/2019 Superseding Determination of the temporary placement of 3 sandbags on a paved surface. [2.] A copy/list of the “additional issues” that the Department reserved the right to present “should there be further proceedings in this matter” The Department provided a response on February 5, 2024. Unsatisfied with the response, Ms. Chaput petitioned this office and this appeal, SPR24/0579, 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, § l0A(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); 950 C.M.R. 32.06(3); see also Dist. 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 M. Cohen SPR24/0579 Page 2 March 6, 2024 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 February 5th Response In its February 5, 2024 response, the Department provided records responsive to the request. Subsequent to the opening of this appeal, the Department sent an email to this office on February 27, 2024 and stated, “MassDEP hereby confirms that all responsive public records in its possession were provided to Ms. Chaput on 2/5/20204 and that no ‘standard report,’ ‘notes,’ or any other additional responsive public records exist in MassDEP’s possession…” Current appeal In her appeal, Ms. Chaput states, “I appreciate the response to part [1] of my request, however, based on the Superseding Determination that [the Department] issued on 2/13/2019, it seems there were more records in the file that would have been responsive to my request [2], that were not included in my records request response.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Where the Department does not possess any additional records responsive to the January 20th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Chaput is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Rachel M. Cohen SPR24/0579 Page 3 March 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Peggy L. Chaput Lirene J. Lavole Shaun Walsh, Esq.