Ann-Marie Cook-English v. Maynard, Town of - Town Administrator (SPR 20160577)

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

Shawn A. Williams Supervisor of Records

August 17, 2016 SPR16/577

Andrew Scribner-MacLean Town of Maynard

Town Administrator

195 Maynard Street Maynard, MA 01754

Dear Mr. Scribner-MacLean:

I have received the petition of Ms. Ann-Marie Cook-English appealing the response of the Town of Maynard (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Cook-English requested copies of all public records related to a specified property in Maynard for the time frame June 1, 2016 to July 6, 2016. On July 12 you provided Ms. Cook-English with records responsive to her request. The basis of her appeal is her understanding that there are further records that she has not been provided with.

The Public Records Law

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).

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.

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). 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.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914

www.sec.state.ma.us/pre

Mr. Andrew Scribner-MacLean SPR16/577 Page 2 August 17, 2016

If there are any fees associated with a 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 fees are paid, a records custodian 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 upon request. Please contact my office directly at the telephone number provided in this determination for further information.

Unclear if Town provided all responsive records

T understand the Town provided a supplemental response dated August 16, 2016 in which it provided additional documents. However, Ms. Cook-English has informed this office she believes additional responsive documents exist that have yet to be provided.

It is important to note 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). Therefore, the Town must inform Ms. Cook-English whether all responsive records have been provided. In addition, the Town must clarify whether any responsive records have been withheld. Flatley, 419 Mass. at 511 (custodian has the burden of

establishing the applicability of an exemption). I understand a member of my staff contacted you about this matter.

Conclusion

Accordingly, the Town is hereby ordered to provide Ms. Cook-English a supplemental response, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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.

A. Williams Supervisor of Records ce: Ms. Ann-Marie Cook-English