Christine A. Bostek v. Plymouth, Town of - Community Preservation Committee (SPR 20160586)

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

Shawn A. Williams Supervisor of Records

August 17, 2016 SPR16/586

Ms. Kathleen O’ Donnell, Esq. P.O. Box 234

12 Belcher Circle

Milton, MA

Dear Attorney O’ Donnell:

I have received the petition of Christine Bostek appealing the response of the Town of Plymouth (Town) — Community Preservation Committee (Committee) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on April 19, 2016, Ms. Bostek requested records related to a specifically identified piece of property. It appears Ms. Bostek submitted a further public records request on May 2, 2016.

Previous Determination

These requests are related to the subject of a previous appeal. See SPR16/039 Determination of the Supervisor of Records (February 18, 2016). In my February 18 determination, I closed the appeal in light of the provision of a response dated February 5, 2016. Subsequently, Ms. Bostek has sought further action from this office with respect to this matter.

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.

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

Ms. Kathleen O’ Donnell, Esq. SPR16/586 Page 2 August 17, 2016

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.

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.

Ms. Bostek’s appeal

In her appeal petition, Ms. Bostek indicates her belief that not all records responsive to her April 19 request were provided. Specifically, she states certain records were withheld during an April 26, 2016 meeting with Mr. William Keohan, Chair of the Community Preservation Committee. In addition, she explains “there has been no response” to her May 2 request.

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 Committee must inform Ms. Bostek whether all responsive records have been provided, particularly those responsive to the April 19 and May 2 requests. In addition, the Committee 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).

[ understand an attorney on my staff contacted you about this matter and provided you a copy of the file associated with this appeal. You indicated the Committee would provide a supplemental response to these requests.

Ms. Kathleen O’Donnell, Esq. . SPR16/586 Page 3 August 17, 2016

Conclusion

Accordingly, I will consider this appeal closed with the proviso that the Committee provide Ms. Bostek 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.

pervisor of Records

cc: Ms. Christine Bostek Mtr. Derek Brindisi