Eleanor Tillinghast v. Department of Conservation and Recreation (SPR 20251997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2025 SPR25/1997 Michael Tencellent Paralegal Department of Conservation and Recreation State Transportation Building 10 Park Plaza, Suite 6620 Boston, MA 02144 Dear Mr. Tencellent: I have received the petition of Eleanor Tillinghast appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 23, 2025, Ms. Tillinghast requested the following: [T]he digitized real estate, land, and other files for Mt. Washington State Forest land parcels associated with the land gifts of [two identified individuals] in the following years: [1] 1958 (internal acquisition no. B356)[;] [2] 1959 (internal acquisition no. B361)[;] [3] 1961 (internal acquisition no. B383)[;] [4] 1968 (internal acquisition no. B567)[.] I want copies of all documents, including but not limited to the title search documents, correspondence, agreements, notes, and minutes. The Department responded on June 10, 2025 and July 9, 2025. Unsatisfied with the responses, Ms. Tillinghast petitioned this office and this appeal, SPR25/1997, 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 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 SPR25/1997 Page 2 July 17, 2025 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. See 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 June 10th and July 9th Responses On June 10, 2025, the Department stated, “[d]ue to the age of the documents, it has taken awhile to track them down. I hope to have them to you by the middle of next week.” On July 9, 2025, the Department stated, “I am still working through the numerous documents that were returned. I hope to have them to you within 10 days.” Current Appeal In her July 9, 2025 petition to this office, Ms. Tillinghast stated, “I made the request absolutely as easy as possible, with the DCR archivist himself giving me the file locations and the search word, and explaining that all the records I want are digitized. There is no reason Mr. Tencellent could not have responded within the legally established 10-day limit, and I want those records now, not in the 10 days, which will stretch to another 10 days and on and on…” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein.

Michael Tencellent SPR25/1997 Page 3 July 17, 2025 G. L. c. 66, § 10(b)(vi). Where Ms. Tillinghast submitted her request on May 23, 2025, and the Department has not provided the responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to complete its review and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Ms. Tillinghast 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. Ms. Tillinghast may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eleanor Tillinghast