Patrick Higgins v. Swansea, Town of - Board of Health (SPR 20160278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A, Williams Supervisor of Records

May 4, 2016 SPR16/278

Ms. Cynthia Martins

Town of Swansea — Selectmen’s Office 81 Main Street

Swansea, MA 02777

Dear Ms. Martins:

I have received the petition of Patrick Higgins appealing the nonresponse of the Town of Swansea (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.LR. 32.08(2). Specifically, Mr. Higgins requested a date and time to inspect every agenda and the minutes of all meetings held by the Town’s Board of Health between December 1, 2012 and October 29, 2015, all emails sent from any Board’s employee’s town email address and all emails sent to and from any of the commissioners personal email addresses in 2013 through 2015. In addition, Mr. Higgins requested the opportunity to review copies of food safety inspections of restaurants from 2011 to present and inspect and copy all executive session agendas and minutes from 2011 to present. Despite a letter sent to the Town’s Chairman of the Board of Health, James Carvalho, dated April 27, 2016 and a communication to you from a member of my staff, no response has been provided.

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 Town has failed to respond to a request for public records. Accordingly, the Town is hereby ordered, within ten (10) days of this order, to provide Mr. Higgins with a response to the request, provided in a manner consistent with this order, the Public Records Law

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Cynthia Martins SPR16/278 Page 2 May 4, 2016

and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Higgins 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 in requesting and responding to requests for public records please refer 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 questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law uponjrequest. Please contact my office directly at the telephone number provided in this determinati n for further information.

pervisor of Records

ce: Mr. Patrick Higgins Mr. James Carvalho