Philip Tarpey v. Department of Conservation and Recreation (SPR 20253711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2025 SPR25/3711 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Philip Tarpey 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 November 29, 2025, Mr. Tarpey sought the following: [1] The identifying information for the endangered species reported to the Otis Conservation Commission on November 6, 2025 by the Massachusetts Department of Conservation and Recreation (DCR) and GeoEnvironmental, Inc. This species is reported to be a “rare and endangered species” being inventoried at Otis reservoir[;] [2] The name, professional credentials (official title), and contact information for the person who identified this “rare and endangered species” for the Commonwealth[;] [3] The name, professional credentials (official title), and contact information of the Commonwealth employee(s) who made the decision on behalf of the Commonwealth to change the water level drawdown from the usual 8 feet to 6 feet for the 2025-2026 time frame. The Department responded on December 2, 2025. Unsatisfied with the response, Mr. Tarpey petitioned this office and this appeal, SPR25/3711, 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

Michael Tencellent SPR25/3711 Page 2 December 29, 2025 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. 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 December 2nd Responses In its December 2, 2025 response, the Department stated, “I have received your request and am in the process of gathering any potentially responsive documents.” Current Appeal In December 12, 2025 petition to this office, Mr. Tarpey stated, “[p]lease accept this communication as an appeal of a ‘lack of compliance’…I submitted the attached request (below in email chain) on December 1, 2025. When I did not get any type of communication indicating my request had been received, I requested same and Mr. Tencellent indicated he received [m]y request…” Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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 SPR25/3711 Page 3 December 29, 2025 G. L. c. 66, § 10(b)(vi). Where Mr. Tarpey submitted his request on November 29, 2025, and the Department has not provided 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). Consequently, the Department must provide an estimated date as to when it intends to complete the search 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 Mr. Tarpey 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. Mr. Tarpey may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Philip Tarpey