Nancy Maloney v. Swampscott, Town of - Town Administrator (SPR 20171595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 22, 2017 SPR17/1595 Sean Fitzgerald Town Administrator Town of Swampscott 23 Monument A venue Swampscott, MA O1 907 Dear Mr. Fitzgerald: I have received the petition of Nancy Maloney appealing the response of Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Maloney requested information related to "cash deposits." Representatives of the Town denied her request, indicating the requested information relates to a matter the Town is currently investigating. 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, § IOA(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, § 1 O(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

Sean Fitzgerald SPRl 7/1595 Page2 November 22, 2017 Failure to claim an exemption in the Public Records Law The Town's response indicates that it "is currently investigating this matter" and "unable to comment on the specifics of the investigation at this time." The Town further states that "[o]nce [its] internal investigation has been completed, the [Town plans] to make information available." The Public Records Law presumes that all government records are public record; however, a records custodian has discretion under the Public Records Law to withhold a record that falls under an exemption. See G. L. c. 4, § 7(26)(a-u). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Town's response does not claim an exemption in the Public Records Law as required in a denial of access to public records. Accordingly, I find that the Town has not satisfied its burden in responding to this records request. The Town is advised that a records custodian is required to cite an exemption and specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I understand a Public Records Division staff member contacted you about this matter and you indicated the Town would provide a supplemental response to Ms. Maloney. Order Accordingly, I will consider this administrative appeal closed with the proviso the Town provide Ms. Maloney 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. Ms. Maloney may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Nancy Maloney