Concerned Parents v. Department of Public Utilities (SPR 20241801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2024 SPR24/1801 Amelia Gianetta, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Gianetta: I have received the petition of Concerned Parents of MA (“requestor”) appealing the response of the Department of Public Utilities (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2024, the requestor sought the following records: [1.] Public records responses already produced by DPU to the public records requesters for SPR appeal SPR24/1543 and also any correspondence from DPU attorneys to the Secretary of State public records appeals department or its attorneys regarding SPR24/1543 Date: 5/20/24-5/24/2024 [2.] Public records responses already produced by DPU to the public records requesters for SPR appeal SPR24/1508 and also any correspondence from DPU attorneys to the Secretary of State public records appeals department or its attorneys regarding SPR24/1508 Date: 5/17/24-6/3/24[.] On June 11, 2024, the requestor modified Item 1 of the request, seeking “all the responsive records released to date.” The Department responded on June 7, June 12, and June 13, 2024, providing numerous responsive records. Unsatisfied with the Department’s response, the requestor petitioned this office, and this appeal, SPR24/1801, 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 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

Amelia Gianetta, Esq. SPR24/1801 Page 2 July 3, 2024 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 Department’s Responses In its June 7, June 12, and June 13, 2024 responses, the Department provides numerous responsive records in redacted form, and cites Exemption (c) of the Public Records Law, and the attorney-client privilege for redacting the records. See G. L. c. 4, § 7(26)(c). Current Appeal In the appeal petition, the requestor states the following: We want to appeal [the Department’s] 6/7 and 6/12 responses, but we’re only appealing two sets of records DPU didn’t produce or substituted non responsive records. We received the rest and retain the right to appeal them separately, within 90 days. Specifically, regarding Item 1 of the request, the requestor contends that “DPU failed to produce the records we actually requested.” Additionally, regarding Item 2 of the request, the requestor contends that “DPU per the zip drive failed to produce all responsive records identified in file #4, that indicated 10 records were produced for SPR24/1508 to that public records requester, yet DPU produced only 4 records prior on 6/7 and 2 records in its response on 6/12 (6 records total).” Records in Existence; Possession, Custody, or Control Please be 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 time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or 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).

Amelia Gianetta, Esq. SPR24/1801 Page 3 July 3, 2024 However, 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). In this case, based on the Department’s responses, and the information provided in the requestor’s appeal petition, it is unclear whether the Department possesses additional records responsive to the request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide the requestor 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: Concerned Parents of MA