Timothy A. Toomey v. Rowley, Town of - Public Library (SPR 20161197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 22, 2016 SPR16/1197 Thomas A. Mullen, Esq. Law Offices of Thomas A. Mullen, P.C. 40 Salem Street, Building 2, Suite 12 Lynnfield, MA 01940 Dear Attorney Mullen: I have received the petition of Timothy A. Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Toomey requested all information relating to the after-hours meeting held on September 27, 2015 by the person or persons authorized for the opening and closing the Library building after hours on that same date. He requested the name or names of the people that used a key for the group to gain access to the library meeting room. The Town has claimed that G. L. c. 78, § 7 as it operates through Exemption (a) will allow the Town to withhold the identities of the individuals. Mr. Toomey was previously provided a redacted copy of the library's calendar for this date, and an email concerning the use of the library for this date. Mr. Toomey appealed. Prior appeal The requested information was the subject of a previous appeal. See SPRl 6/1020 Determination of the Supervisor of Records (November 29, 2016). Mr. Toomey was provided redacted records therefore he appealed. In my November 29 determination, I ordered the Town's Library Director, Pamela Jacobson to provide a supplemental response within ten (10) days explaining why the Town redacted the names of the individuals from the calendar pages and the email. Your December 1, 2016 letter was sent in compliance with the administrative order from this office. Mr. Toomey has appealed your December 1 response. 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 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

Thomas A. Mullen, Esq. SPR16/1197 Page2 December 22, 2016 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). 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. · Exemption (a) The Town has claimed that Exemption (a) applies to allow the Town to withhold the name or names of the individuals whose identities were redacted from the meeting calendar and email provided to Mr. Toomey. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materiais where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985): G. L. c. 78, § 7 - Library Circulation Records The statute that the Town believes is applicable to withhold the identities of the individual who used a key to gain access to the library meeting room on September 27, 2015 is G. L. c. 78, § 7. This statute provides in pertinent part: ... [T]hat part of the records of a public library which reveals the identity and intellectual pursuits of a person using such library shall not be a public record as defined by clause Twenty-sixth of section seven of chapter four ... The Town has claimed that this statute allows for the withholding of the name of the individual who obtained a key to allow access to open and close the library building's doors so that a group of individuals could use one of the library meeting rooms. It is my understanding that these individuals wern at the September 27, 2015 meeting to discuss a recall of a member or

Thomas A. Mullen, Esq. SPR16/1197 Page 3 December 22, 2016 members who sat on the Town's Water Board. You explain in your December 1 response that Mr. Toomey is already aware that the purpose of the meeting was "water recall" and that Ms. Jacobson left in place on the calendar the notation, "water recall." Thus, you state, it discloses intellectual pursuit of the requester (of the key and request for use of the library). I find you're your analysis is incorrect. The statute in question pertains to library circulation records. This statute would protect any person who requested or borrowed particular books, magazines, periodicals, or any other items of circulation from the library. I find that the Town has failed to meet its statutory and regulatory obligation under the Public Records Law in withholding the requested information pursuant to Exemption (a). Order I find the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered to provide Mr. Toomey with the requested information and 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 ,.,_r=e~=====+= cc: Timothy A. Toomey