Jeanne Golrick v. Montague, Town of - Building Department (SPR 20160027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 5, 2016 SPR16/027 Mr. David E. Jensen Town of Montague-Inspector of Buildings One Avenue A Turner Falls, MA 01376 Dear Mr. Jensen: I have received the petition of Jeanne Golrick appealing the response of the Town of Montague-Building Department (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Golrick requested to "view and possibly copy" multiple categories of records related to a specifically identified property. This request was the subject of a previous appeal. See SPR15/859 Determination of the Supervisor of Records (December 4, 2015). As indicated in my December 4 determination, the Town provided a response to Ms. Golrick dated November 19, 2015. In this response, the Town offered to provide certain records but withheld others. Ms. Golrick objected to this response and appealed the Town's response to Request 7, Request 8, and Request 10 as explained further below. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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); Flatley, 419 Mass. at 511. The Town's response dated January 28,2016 Subsequent to the opening of this appeal, the Town provided a supplemental response dated January 28, 2016. I will now analyze this response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. David E. Jensen SPR16/027 Page2 February 5, 2016 Request 7 Ms. Golrick's Request 7 was for "any and all documents" that support a statement you made regarding the property. In the January 28 letter, you indicate certain responsive records are available at the appropriate Registry of Deeds and there are no public records being denied. However, you also state that there was review by Town Counsel and that "[t]he work that resulted in that conclusion is protected." It is unclear whether the Town possesses any records responsive to Request 7. If the Town possesses these records, it must provide them or specifically explain how an exemption to the Public Records Law applies to withhold them. See 950 CMR 32.05(4) (custodians of records are required to use their superior knowledge of the contents of their files io assist in promptly complying with the request). Request 8 Ms. Golrick' s Request 8 was for "any and all documents related to the building permit for a Loading Dock on the [p]roperty." In the January 28 letter, you indicate certain responsive records are available for viewing. However, you also state "[b] uilding plans are no longer available as a [p ]ublic [r ]ecord." Although the Town intends to provide certain responsive records, I find the Town has yet to meet its burden of specificity in denying access to the responsive "building plans" because it did not cite an exemption to the Public Records Law nor explain how an exemption applies to the record. Request 10 Ms. Golrick' s Request 10 was for "any and all documents necessary to demolish the Loading Dock. ..." In the January 28 letter, you indicate certain responsive records are available for viewing. In addition, you explain that other potentially responsive records may be obtained from other agencies. It is unclear whether the Town possesses any additional records responsive to Request 10. If the Town possesses records other than those made available in the January 28 letter, it must provide them or specifically explain how an exemption to the Public Records Law applies to withhold them. See 950 CMR 32.05(4) (custodians of records are required to use their superior knowledge of the contents of their files to assist in promptly complying with the request). It should be noted, however, that the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in

Mr. David E. Jensen SPR16/027 Page 3 February 5, 2016 response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). Conclusion For the reasons discussed above, I find the Town has yet to meet its burden in responding to Ms. Golrick's request. Accordingly, the Town is hereby ordered, within ten (10) days, to provide Ms. Golrick with a revised response made in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide to Ms. Golrick 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. To assist the Town in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys and other members of my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops o the Public Records Law upon request. Please contact my office directly at the telephone nu er provided in this determination for further information. illiams Enclosure cc: Ms. Jeanne Golrick