William E. Shay, Esq. v. Bourne, Town of - Town Administrator (SPR 20170035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 9, 2017 SPR17/035 Thomas M. Guerino Town Administrator Town ofBourne 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Guerino: I have received the petition of William E. Shay, Esq. appealing the non-response ofthe Town of Bourne-Town Administrator to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shay records regarding nineteen (19) itemized requests in his December 15, 2016 public records request. The Town provided Attorney Shay with records responsive to a previous request, waiving all applicable fees allowed under the Public Records Law. In his petition for an appeal, Attorney Shay states that the records provided are not responsive to his December 15 request. Timeliness of response 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. All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of 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, § 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). 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 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 M. Guerino SPR17/035 Page 2 January 9, 2017 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, § 1O (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. In a January 6, 2017 telephone conversation with an attorney on my staff, you promised to provide Attorney Shay with a written response concerning each of the nineteen (19) itemized requested records in his December 15 letter. Accordingly, whereas this matter was opened based upon the Town's failure to provide a written response to the December 15, 2016 request, I will consider this administrative appeal closed with the proviso that the Town provides Attorney Shay with the response within ten (10) days, and 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 the response to this office at pre@sec.state.ma.us. · Attorney Shay may appeal the substantive nature of the Town's response within ninety (90) days. Se.e 950 C.M.R. 32.08(2). Sincerely, Rebecca S. Murray Supervisor of Records cc: William E. Shay, Esq.