Kristin Anderson v. Massachusetts Water Resources Authority (SPR 20240704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2024 SPR24/0704 Laurie Allen Record Access Officer Massachusetts Water Resources Authority Deer Island 33 Tafts Avenue Boston, MA 02128 Dear Ms. Allen: I have received the petition of Kristin Anderson appealing the response of the Massachusetts Water Resources Authority (MWRA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2023, Ms. Anderson requested “. . . all correspondence and information from [2023] regarding the Army Corps Engineers and the Alewife Brook.” The MWRA responded on December 22, 2023. Unsatisfied with the MWRA’s response, Ms. Anderson petitioned this office and this appeal, SPR24/0704, 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. 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. 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

Laurie Allen SPR24/0704 Page 2 March 20, 2024 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 MWRA’s December 22nd response In its December 22, 2023 response, the MWRA asserted “MWRA does not have any records responsive to your request.” Current Appeal Ms. Anderson indicated in her appeal that: It is my belief that MWRA does have the responsive documents because there was definitely a meeting between MWRA and Army Corps Engineers where representatives from MWRA, as well as the cities of Cambridge, Somerville, and the Town of Arlington met to discuss Alewife Brook CSOs and how the Army Corps of Engineers might be able to help mitigate some of the serious environmental and health hazards. On March 12, 2024, the MWRA provided a supplemental response, asserting “[the MWRA] ha[s] confirmed that MWRA does not have any records responsive to your December 11, 2023 Public Records Request.” In a telephone conference between a staff attorney of the Public Records Division, and a MWRA representative, MWRA asserted that no such meeting took place and further confirmed that MWRA is not in possession of any responsive records. No Duty to Create Records Ms. Anderson is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the MWRA has confirmed that it has no records responsive to the request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Anderson is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior

Laurie Allen SPR24/0704 Page 3 March 20, 2024 Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Kristin Anderson