Jake Fortes v. Department of Environmental Protection (SPR 20252322)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 18, 2025 SPR25/2322 Rachel Cohen Records Manager Massachusetts Department of Environmental Protection 436 Dwight Street Springfield, MA 01102 Dear Ms. Cohen: I have received the petition of Jake Fortes appealing the nonresponse of the Department of Environmental Protection (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2025, Mr. Fortes requested the following: …all emails and communications between [the Department] and the Markley Group, its related entities, its [identified] attorney and any mention of the Markley Group from any other person or entity in the past two years from the list of [identified 6 individuals]... The scope of this is not to be limited to just interactions with the Markley Group but all entities who have reached out to the above individuals in reference to the Markley Group including elected officials among any others. The Department responded on August 1, 2025. Unsatisfied with the response, Mr. Fortes petitioned this office and this appeal, SPR25/2322, 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). 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

Rachel Cohen SPR25/2322 Page 2 August 18, 2025 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 August 1st response In its August 1, 2025 response, the Department responded to Mr. Fortes stating, “[w]e will need five more business days to provide the responsive records to your request, as allowed under Massachusetts Public Records Law. You will receive responsive records by Friday, August 8th.” Current Appeal In his August 8, 2025 appeal, Mr. Fortes states, “…I phoned Rachel Cohen on Friday, August 8, 2025 at 4:14PM to inquire on the whereabouts of the response and if it would be forthcoming by her stated deadline. She indicated she was not on-site and could not provide the records by the deadline she had set for the response. In this vein, I am proceeding with an appeal for this request to the Secretary of the Commonwealth.” 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. G. L. c. 66, § 10(b)(vi).

Rachel Cohen SPR25/2322 Page 3 August 18, 2025 Where Mr. Fortes’ request was submitted on July 18, 2025, and the Department has not provided responsive records, I find that the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, the Department must provide an estimated date as to when it expects to complete its review and provide the requested 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 Mr. Fortes with a response to his 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. Mr. Fortes 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: Jake Fortes