Levenson, Deborah v. Hadley, Town of - Town Clerk (SPR 20150801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 11, 20 15 SPRlS/801 Mr. David G. Nixon Town Administrator Town of Hadley 100 Middle Street Hadley, MA 01035 Dear Custodian: I have received the petition of Deborah Levenson appealing the nonresponse of the Town of Hadley (Town) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Levenson requested several records itemized 1 through 8 regarding Hawley Road in Hadley. On September 22, 2015 the Town provided a response to her record requests. The basis of Ms. Levenson's appeal is the Town's response to request numbers 1 regarding the collection of taxes for Hawley Road, and request number 5 regarding the installation of public sewers and subsequent repaving/reconstruction of Hawley Road. Please be advised that 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 of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). With respect to Ms. Levenson's request number 1 regarding the collection of taxes for Hawley Road the Town responded that, "the information does not exist, and does not fall within the definition of public record". It is unclear from this response whether no records responsive to this request exist, or, records responsive to this request exist that the Town feels fall within one of the statutory exemptions to the Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. David G. Nixon SPR15/801 Page Two December 11, 2015 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the specificity required in a denial of access to public records. Accordingly, the Town is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. With respect to records request number 5 regarding the installation of public sewers and subsequent repaving/reconstruction of Hawley Road the Town responded "see response above". Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. I find the Town has yet to properly respond to request numbers 1 and 5. Accordingly, the Town is hereby ordered to review its records determine whether it possesses any records responsive to his requests numbers 1 and 5, and within ten (10) days of this order, to respond to those request in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of any records located responsive to Ms. Levenson's requests are exempt from disclosure it must, within ten (10) days provide to Ms. Levenson a written explanation, with specificity, how a particular exemption applies to each record. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. A copy of any such response must be provided to this offi . It is preferable to send an electronic copy of this response to this office at re sec.s s. cc: Ms. Deborah Levenson