Bell, Daniel v. Great Barrington, Town of - Department of Public Works (SPR 20150322)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 13, 2015 SPRlS/322 Mr. Joe Sokul Town of Great Barrington Department of Public Works 334 Main Street Great Barrington, MA 01230 Dear Mr. Sokul: I have received the petition of Daniel Bell appealing the response of the Town of Great Barrington (Town) Department of Public Works (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in a request dated AprilS, 2015, Mr. Bell requested a copy of what he referred to as the updated "map" of the Town sewer line that was replaced from Belcher Square through his property at 195 State Street. In a response dated April 24, 2015 you stated that all information on file for the section of sewer line in question had already been provided to Mr. Bell. Having not received a copy of a map, nor being told that no responsive map exists, Mr. Bell petitioned this office. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). The Public Records Law states that "the burden shall be upon the custodian to prove with spec~ficity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Department did not contain the specificity required in a denial of access to public records. Accordingly, the Department is advised that to comply with the Public Records Law and its Regulations it must provide specificity with respect to any denial of access to public records. This requires a records OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Joe Sokul SPR15/322 Page Two July 13, 2015 custodian to not only cite an exemption, but to specifically explain the applicability ofthe exemption to the requested records. Your written response to Mr. Bell did not clearly state whether the responsive records exist and are in the possession of the Department. Mr. Bell has filed over a dozen appeals with this office since 2010 regarding responses from various Town departments. To avoid, or at least minimize the frequency of future appeals I strongly urge the Town to carefully review each request made by Mr. Bell to ensure the response is complete and addresses the actual request made for records. The Department has yet to meet its burden of proving with specificity why responsive records have not been made available. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Bell with the requested records. Ifthe Department maintains that the responsive record does not exist, the Department is further ordered to explain that fact in writing. Accordingly, whereas the Department has not overcome the presumption that the requested records exist and are public records, it is hereby ordered, within ten (10) days ofthis order, to provide Mr. Bell with the requested records. If the Department maintains that any portion ofthe responsive records are exempt from disclosure, or if it has determined that no responsive record exists, the Department must, within ten (1 0) days provide to Mr. Bell a written explanation, with specificity, how a particular exemption applies to each record. 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 res onsive record. A copy of any such response must be provided to this office. It is preferable t end an electronic copy of this response to this office at pre@sec.state.ma.us. Supervisor ofRecords cc: Mr. Daniel Bell