Andrew McIsaac v. Weymouth, Town of - Public Libraries - Tufts Library (SPR 20170196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 21, 2017 SPR17/196 Robert MacLean Director of Library Services Weymouth Public Libraries Tufts Library 46 Broad Street Weymouth, MA 02188 Dear Mr. MacLean: I have received the petition of Andrew Mclsaac appealing the response of Town of Weymouth - Public Library (Library) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 8, 2017 Mr. Mclsaac requested "all hold lists created on February 8, 2017." In a response dated February 13, 2017, the Library denied his request, claiming the responsive record may be withheld under G.L. c. 78, §7. 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Robert MacLean SPRl 7/196 Page 2 February 21, 2017 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. Exemption (a) In the Town's February 13th response you provide language from G.L. c. 78, § 7 and indicate "[t]herefore, what you are requesting is not a public record and cannot be provided." It should be noted that the Library must cite an exemption to the Public Records Law, specifically Exemption (a), if it is claiming a record exempted from disclosure by statute. G. L. c. 66, § lO(b)(iv); G. L. c. 4, § 7(26)(a). The Library did not do this in its February 13th response. 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 materials 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." G.L. c. 78, § 7 provides in pertinent part: That 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. Based on the Library's February 13th response, it is unclear what type of information is found on the responsive "hold lists created on February 8, 2017" and how disclosure would reveal "the identity and intellectual pursuits of a person using such library" as stated in G.L. c. 78, § 7. Further, the Library has not demonstrated how the responsive record, in its entirety, may be withheld from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90

Robert MacLean SPRl 7/196 Page 3 February 21, 2017 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, §§ lO(a), lO(b)(iv). I understand an attorney on my staff contacted you and you indicated the Library would provide Mr. Mclsaac a supplemental response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Library provide Mr. Mclsaac with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Mclsaac