Steve Kaspan v. Barnstable, Town of - Town Attorney (SPR 20161196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 20, 2016 SPR16/1196 , Ruth J. Weil, Esq. Town Attorney Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Attorney Weil: I have received the petition of Steve Kaspan appealing the response of the Town of Barnstable (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kaspan requested a copy of employment information regarding a specifically identified person. The Town provided the record in redacted format citing "confidentiality of third parties." Mr. Kaspan appealed. Status of the requester Please be advised, Mr. Kaspan' s particular interest in the record does not provide him with any greater right to obtain the record than any other individual in the public realm. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. See G. L. c. 66, § lO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (the public records statute does not provide a "standing requirement but extends the right to examine to "any person" whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity"). A person is statutorily entitled to inspect his or her own personnel file, and may do so by contacting an employer directly. See G. L. c. 149, § 52C. 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, § lO(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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Ruth Weil, Esq. SPR16/1196 Page 2 December 20, 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. 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. Town failed to properly claim an exemption The Town provided Mr. Kaspan with a copy of the responsive record; however, one paragraph of the document was redacted. Both your December 10 response and the December 7 response of the Human Resource Director, William E. Cole states that information within the content of the record was withheld due to "confidential information from third parties" but no exemption was cited. The Town has not met its statutory and regulatory obligation of properly citing one of the exemptions enumerated in the Public Records Law, and specifically explaining how the exemption applies to withhold the redacted portion of the record. Order The Town is hereby ordered to provide Mr. Kaspan with a response to the request, 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. cc: Steve Kaspan William E. Cole