William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20170551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 5, 2017 SPR17/551 Joseph S. Fair, Esq. KPLaw,P.C. 101 Arch Street, 11th Floor Boston, MA 02110 Dear Attorney Fair: I have received the petition of William Moschella appealing the response of Town of Rowley (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 6, 2017, Mr. Moschella requested "any and all copies concerning the Town of Rowley water board executive session meeting minutes for September 11, 2015." The Town responded in a letter dated April 20, 2017 by producing responsive records with portions redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 1O (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

Joseph S. Fair, Esq. SPRl 7/551 Page2 May 5, 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://wv\Tw.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Current appeal I understand the Office of the Attorney General's (AGO) Division of Open Government previously opined on the status of these executive session minutes. See OML 2016 -21. Based on his appeal petition, it is unclear whether Mr. Moschella objects to the redactions made under Exemption (c). See 950 C.M.R. 32.08(1)(:f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requester's objections to the response or failure to timely respond). In his appeal petition Mr. Moschella indicates "[o ]nly one (1) copy of the minutes ... was provided from an unknown source through counsel for the Town of Rowley as a response. It is my understanding that three (3) copies of the aforementioned minutes were supplied to the Town of Rowley Water Commissioners in the calendar year 2016." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). The Town must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G .L. c. 66, § 1O (b )(vii) ( a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Mr. Moschella must also clarify what type of additional records he is seeking. G.L. c. 66, § lO(a)(i) (the request must reasonably describe the public record sought). A Public Records Division staff attorney contacted you and you indicated Mr. Moschella also submitted a public records request to the Town on April 22, 2017 that references the September 11, 2015 executive session minutes. You explained the Town will be providing a response to this request within the timeframe described in G.L. c. 66, § lO(b). You also indicated the Town would provide a supplemental response to Mr. Moschella regarding his April 6th public records request. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Town provide Mr. Moschella with a response to the request, provided in a manner consistent with this order,

Joseph S. Fair, Esq. SPR17/551 Page 3 May 5, 2017 the Public Records Law and its Regulations within ten 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.rna.us. Rebecca S. Murray Supervisor of Records cc: William Moschella