Lisa French v. Department of Conservation and Recreation (SPR 20243402)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2025 SPR24/3402 Michael Tencellent Paralegal Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Lisa French appealing the response of the Department of Conservation and Recreation (Department/DCR) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 6, 2024, Ms. French requested: [C]opies of the meeting minutes (summaries) and the public documents that were discussed at a meeting on October 17, 2024 in which DCR and MBTA representatives met with the Town Manager of Hull and various representatives and designees of Hull departments and boards. The Department provided responses on December 19 and December 20, 2024. Unsatisfied with the responses, Ms. French petitioned this office and this appeal, SPR24/3402, 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 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

Michael Tencellent SPR24/3402 Page 2 January 6, 2025 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 December 19th and December 20th Responses In its December 19, 2024 response, the Department provided Ms. French with responsive records, redacted pursuant to Exemption (n) of the Public Records Law. In its December 20, 2024 response, the Department stated that it possessed no additional records responsive to Ms. French’s request. Current Appeal In her December 20, 2024 petition to this office, Ms. French stated that additional responsive records were likely to exist. Specifically, Ms. French expressed her belief that “… a meeting summary was created because summaries were created for previous meetings.” In an email to this office on December 30, 2024, the Department confirmed that it had conducted a search of its records and found no additional responsive documents. No Duty to Create Records Please be 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 Given that all responsive records in the Department’s custody have been provided and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Ms. French 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Michael Tencellent SPR24/3402 Page 3 January 6, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Lisa French