Laura H. Ortiz v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20240863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0863 Peter Mulcahy, Esq. General Counsel Primary Records Access Officer Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Mulcahy: I have received the petition of Laura Ortiz appealing the response of the Executive Office of Energy and Environmental Affairs – Office of Coastal Zone Management (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2024, Ms. Ortiz requested the following: [1.] email and/or email chain with attachments, dated October 14, 2023, to October 17, 2023, between Executive Office of Energy and Environmental Affairs (“EEA”) Director of Communications… and General Counsel… as well as any email chains to/from DPU Senior Counsel/Public Records Supervisor… and DPU RAO… concerning any creation of a tracker to facilitate the processing of non-routine requests of public records or information. [2.] email and/or email chain with attachments, dated October 20, 2023, to January 25, 2024, between EEA General Counsel… EEA Director of Communications… as well as any email chains to/from DPU RAO… and DPU Senior Counsel/Public Records Supervisor… and others related to concerning the approval of any DPU request pursuant to EEA’s public records request policy. [3.] email and or email chain, dated January 21, 2023, to January 25, 2023, between EEA Assistant General Counsel… as well as any to/from [two named DPU RAOs], DPU Senior Counsel/Public Records Supervisor… and Public Access Coordinator… related to any response that EEA General Counsel… was looking for. 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

Peter Mulcahy, Esq. SPR24/0863 Page 2 April 4, 2024 The Office responded on March 5, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/0863, 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. 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 Office’s March 5th Response In its March 5th response, the Office cited the attorney-client privilege and stated, “I just wanted to flag that it looks like [Ms. Ortiz’s] requests seek[s] communications primarily between agency staff and counsel, many of which are likely to be attorney-client privileged and not subject to disclosure under the Public Records Act. If there’s a particular issue [she is] interested in, I’d be happy to discuss and see whether there’s a way we can tailor [her] request to get [her] the available records [she] need[s] or otherwise answers to any questions [she] might have – let me know.” Current appeal In her appeal, Ms. Ortiz states, “[t]he Executive Office of Energy and Environmental Affairs failed to appropriately respond regarding responsive records … The Executive Office of Energy and Environmental Affairs has not claimed any exemptions nor did it produce any privilege log etc in order to legally withhold any of the public records I requested…” Possession, Custody, or Control The Office is advised that 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

Peter Mulcahy, Esq. SPR24/0863 Page 3 April 4, 2024 time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, 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). Based on the Office’s March 5th response, it is unclear what records the Office possesses that are responsive to Ms. Ortiz’s request. Further, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive records are exempt from disclosure under the Public Records Law. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Ortiz 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz