James Harrington v. Newton, City of - Treasury and Collection Department (SPR 20160083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 4, 2016 SPR16/083 Ms. Linda Dubuque Assistant Treasurer City ofNewton Treasury and Collection Department 1000 Commonwealth A venue Newton, MA 02459 Dear Ms. Dubuque: I have received the petition of James Harrington appealing the response of City of Newton -Treasury and Collection Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Harrington requested the current motor vehicle excise tax paid by a specifically named individual. The Department's January 28 letter states that, "[w]ithout confirming or denying the existence of a record, your request is hereby denied pursuant to Exemption (c)." 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). I find the City failed to respond to a request for a public record. First, the response fails to state whether a responsive record actually exists. Should the record not exist there would be no need to claim an exemption. The City provided no justification to support their response in failing to state whether a responsive record exists. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Linda Dubuque SPR16/083 Page 2 March 4, 2016 Further, the City failed to state with specificity how Exemption (c) would apply to permit nondisclosure of an excise tax record. Many communities in Massachusetts provide records associated with excise tax payments for motor vehicles on their websites. I find, despite a conversation between you and an attorney on my staff, the City has failed to rebut the presumption that payment information regarding excise tax on a specific motor vehicle is exempt from disclosure pursuant to Exemption (c). Accordingly, the Department is hereby ordered to provide a response to Mr. Harrington's request, within ten (10) days, prepared in a manner consistent with the Public Records Law, its Access Regulations and this order. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Harrington a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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 in responding to requests for public records I refer the City to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general qu tions regarding the Public Records Law. In addition, members of my staff will visit a records c odian in person to conduct training workshops on the Public Records Law upon re st lease contact my office directly at the telephone number provided in this determination £ r fi r information. cc: Mr. James Harrington