Kelly M. Kelly v. Townsend, Town of - Town Administrator (SPR 20170694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 1, 2017 SPR17/694 James M. Kreidler, Jr. Town Administrator Town of Townsend 272 Main Street Townsend, MA 01469 Dear Mr. Kreidler: I have received the petition of Kelly M. Kelly appealing the response of the Town of Townsend (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kelly requested "a copy ofthe notes and papers passed between the town administrator and Gordon Clark at the Tuesday, May 9, 2017 annual town meeting" and "any correspondence between any of the Selectmen, town administrator, town counsel or Chief Eaton" with identified individuals from May 1, 2016 until the present. In a response dated May 19, 2017 you notified Ms. Kelly that records responsive to the first part of her request were being withheld under Exemption (e) of the Public Records Law, and provided her with a fee estimate for completion of the second part of her request. Ms. Kelly states in her appeal that the "notes and papers" were shared between the Town Administrator and Gordon Clark and, therefore, Exemption (e) does not apply. In her May 19, 2017 petition Ms. Kelly explains that she is only objecting to the portion of the Town's response that relates to the Exemption (e) claim. 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, § IO(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 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

James M. Kreidler, Jr. SPR17/694 Page 2 June 1, 2017 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 (e) In the Town's May 19th response, you deny Ms. Kelly's request for "a copy of the notes and papers passed between the town administrator and Gordon Clark at the Tuesday, May 9, 2017 annual town meeting," citing Exemption (e) of the Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). Ms. Kelly's request was specifically for "notes and papers" that were shared between Town employees. Therefore, it is unclear how Exemption (e) can apply to withhold with responsive records. As such, I find the Town has not met its burden in withholding the records in their entirety. Order Accordingly, the Town is hereby ordered to provide Ms. Kelly with a response to the request, provided in a manner consistent with this order, 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.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kelly M. Kelly