Unger, Phyllis v. Department of Public Safety (SPR 20150873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 24,2015 SPRlS/873 Mr. Stephen Carley, Esq. Department of Public Safety One Ashburton Place, Room 1301 Boston, MA 02108 Dear Attorney Carley: I have received the petition of Phyllis Unger appealing the response of Department of Safety (Department) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Unger requested to know whether "the building license belonging to Building Inspector Glenn Clohecy has expired or not and when." In May and early November of 2015, Ms. Unger had made several phone calls to the Department with her request and was given non-conclusive answers. Then she subsequently submitted a request in writing along with a check for $5.00 fee to which you had initially provided a response, dated November 18,2015. But the response was not fully responsive to what Ms. Unger was requesting. Having received no further response, Ms. Unger petitioned this office. 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, § 10(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. Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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). 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(c); 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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Stephen Carley, Esq. SPR15/873 Page Two December 24, 2015 Subsequent to the opening of this appeal, a member of my staff contacted you and also forwarded a copy of this appeal for your review including contact information for Ms. Unger, dated December 12,2015. Accordingly, whereas this administrative appeal was filed due to the lack of specificity in the Department's response, and further whereas the Department has indicated it will comply with the provisions of the Public Records Law with a proper response, I will consider this appeal closed with the proviso that the Department provide a revised response to Ms. Unger within ten (10) days. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Unger 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 responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. 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. cc: Ms. Phyllis Unger