Tom Donahoe v. Massachusetts Department of Environmental Protection (SPR 20252878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2025 SPR25/2878 Rachel M. Cohen Records Access Officer Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Tom Donahoe appealing the response of the Massachusetts 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 August 12, 2025, Mr. Donahoe requested, “[r]ecords, reports, summaries, pictures associated with a site visit during June or July 2025 to [an identified address] and the Town of Lee Municipal Drinking Water tank. Town of Lee informs me that your agency did a fact finding visit to assess tree damage, disturbance of 300 foot non disturbance zone and evaluation of vernal pool(s) located nearby…” The Department responded on August 13 and August 25, 2025. Unsatisfied with the Department’s response, Mr. Donahoe petitioned this office and this appeal, SPR25/2878, was opened as a result. Subsequently, on October 8, 2025, the Department provided an additional response. 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. Att’y 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

Rachel M. Cohen SPR25/2878 Page 2 October 9, 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 August 13th and August 25th Responses In its August 13, 2025 response, the Department stated, “[y]our request is being forwarded to the records response coordinators in our Western Regional Office and the Bureau of Water Resources, who will follow up with you directly.” In its August 25, 2025 response, the Department provided online resources and stated, “MassDEP Western Regional Office has no responsive records.” Current Appeal In his October 1, 2025 petition to this office, Mr. Donahoe stated, “[t]he response indicates that there are no responsive records…As the Lee Town officials have attested, the DEP actually visited the Lee Water tank site. The DEP response should have at least confirmed [that][:] 1) that a site visit occurred[;] 2) the date occurred[;] 3) who were the responsible employees who visited[;] 4) it should also indicated any expenses that were incurred[;] 5) if no records were kept of the inspection then that should be confirmed as well.” In an October 8, 2025 email communication to this office and Mr. Donahoe, the Department confirmed that it does not have any records responsive to Mr. Donahoe’s request. 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 Where the Department has stated that it does not possess responsive records and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Donahoe 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).

Rachel M. Cohen SPR25/2878 Page 3 October 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Tom Donahoe