Allison Jenkins v. Hamilton, Town of - Town Manager (SPR 20171133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2017 SPR17/1133 Michael A. Lombardo Town Manager Town of Hamilton 577 Bay Road Hamilton, MA 01936 Dear Mr. Lombardo: . I have received the petition of Allison Jenkins appealing the response of the Town of Hamilton (Town), specifically that of the Town's Planning Board (Board), to her request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Ms. Jenkins requested an identified email that was referenced by a Board member in an open meeting. Indicating she had yet to receive the record, Ms. Jenkins petitioned this office and this appeal was opened as a result. In a response dated July 31, 2017, the Board Director informed Ms. Jenkins that he requested the responsive record from a Board member and the individual that sent the email, but he had not received the record. 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

Michael A. Lombardo SPR17/1133 Page 2 August 31, 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. 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 members 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. Based on the Board's response, it is unclear why the Board has not been able to provide the responsive record to Ms. Jenkins, nor has the Board explained when it intends to provide the record. 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Board must clarify this matter. Open Meeting Law It should also be noted that whereas this request pertains to a document referenced at an open meeting, this matter may invoke the Open Meeting Law. Please note that an interpretation of the Open Meeting Law falls within the authority ofthe Office ofthe Attorney General (AGO) and not this office. It is recommended that you contact the AGO should you seek a determination on this issue. I understand a staff member from the Public Records Division contacted a representative from the Town about this matter. Conclusion Accordingly, the Board is ordered to provide a response to Ms. Jenkins, prepared in compliance with this order 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, fMwA~ Rebecca S. Murray Supervisor of Records cc: Allison Jenkins