Daniel J. Harlow v. Kingston, Town of - Town Administrator (SPR 20160581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 18, 2016 SPR16/581; SPR16/582 Mr. Robert H. Fennessy, Jr. Town Administrator Town of Kingston 26 Evergreen Street Kingston, MA 02364 Dear Mr. Fennessy: I have received the petition of Daniel Harlow appealing the response of the Town of Kingston-Board of Selectmen (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on May 31, 2016, Mr. Harlow requested records related to a specific reporter (SPR16/581). In addition, on May 17,2016, Mr. Harlow requested records related to February 11, 2014 Board meeting (SPR16/582). The Board responded to both these requests, both of which Mr. Harlow appealed. Given that that the two (2) records requests were made to the Board, these appeals will be addressed by this determination. 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, § 1O (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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Robert H. Fennessy, Jr. SPR16/581; SPR16/582 Page 2 August 18, 2016 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR16/581 In his May 31 request (SPR16/581) Mr. Harlow sought "all supporting documentation as well as any discussions (ie any and all created audio records) pertaining to any information request made by" a specifically identified reporter regarding certain executive sessions. In a response dated June 9, 2016 the Board provided certain responsive records. However, Mr. Harlow indicates in his appeal petition that he believes not all responsive records have been provided, including correspondence between the reporter and the Board. SPR16/582 In his May 17 request, Mr. Harlow sought "all supporting documentation as well as any discussions" including "Board of Selectmen meeting minutes, both open and executive, as well as any and all audio recordings for both open an executive meeting[ s] pertaining to the discussions held regarding" a specific matter. In addition, Mr. Harlow requested "any and all discussions, including e-mails, which led up to, and ultimately created the call for any Board of Selectmen meetings" regarding the specific matter. In a response dated July 12, 2016, the Board provided a copy of minutes from a February 11, 2014 executive session. However, Mr. Harlow indicates in his appeal petition that he believes not all responsive records have been provided, including audio recordings and draft executive session minutes.

Mr. Robert H. Fennessy, Jr. SPR16/581; SPR16/582 Page 3 August 18, 2016 Open Meeting Law; existence of additional records Open Meeting Law It is unclear whether the Board is invoking the Open Meeting Law to withhold any responsive records. The interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO). Therefore, I decline to provide a determination as to any issues involving the Open Meeting Law. G. L. c. 30A, § 21(a)(3). I recommend the parties contact the AGO for such a determination. Existence of additional records It is important to note that under the Public Records Law, 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 ofthe request. See G. L. c. 4, § 7(26). Therefore, the Board must inform Mr. Harlow whether all responsive records to the May 17 and May 31 requests have been provided. In addition, the Board must clarify whether any responsive records have been withheld. The Board must specify whether it is withholding any records under an exemption to the Public Records Law or a provision of the Open Meeting Law. Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). I understand an attorney on my staff contacted you about this matter and provided you a copy of the file associated with this appeal. Order Accordingly, the Board is hereby ordered to provide Mr. Harlow with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to th" s office. It is preferable to send an electronic copy of this response to this office at sec. tate.ma.us. cc: Mr. Daniel Harlow