Michael J. Rausch v. Bourne, Town of (SPR 20170929)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21,2017 SPR17/929 Barry H. Johnson Town Clerk Town of Bourne 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of Michael Rausch appealing the response of the Town of Bourne Town Clerk (Town) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rausch requested, "Any and all reports on file with the town of Bourne pursuant to any investigation performed from January 1, 2017 to June 14, 2017, into the conduct of [a specifically identified individual]." Mr. Johnson responded to this request by stating, "After reviewing the records in Bourne Town Hall, I respond that there are no public records responsive to this request." Feeling unsatisfied with the Town's response, Mr. Rausch appealed this office. A member of the Public Records Division staff made numerous attempts to contact Mr. Johnson, including emails and phone calls, but has not heard back from him to date. Subsequent to the intervention by a member of the Public Records Division staff, this office was notified that the investigation referenced in Mr. Rausch's request was performed by the Town Counsel, RobertS. Troy, Esq., of Troywall Associates. It is my understanding that the requested records are in the custody of Troywall Associates. The Public Records Division contacted Attorney Troy, who claimed that the documents were exempt from disclosure on the premise that they are "privileged and confidential." 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 toinclude 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). 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

Barry H. Johnson SPR17/929 Page 2 July 21, 2017 Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the municipal building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Please note that in such situations, copies of the public records must also be maintained in the municipal building in accordance with the Regulations promulgated by this office. See 950 CMR 32.05(1). If it's the case that the Town was at one time in possession of the responsive record and it maintains that the responsive record is no longer in its possession, the Town is further ordered to explain in writing its justification under the Public Records Law and the Municipal Records Retention Manual. Order Accordingly, the Town is hereby ordered, within ten (10) days, to provide Mr. Rausch with a revised written response to his request for records. This response must be prepared in compliance with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure, it must provide an index of records being withheld, as well as a written explanation, with specificity, of how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. Mr. Rausch may appeal the substantive nature of the Town's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Rausch Robert S. Troy, Esq.