Maya Shaffer v. Shirley, Town of (SPR 20171616)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 22, 2017 SPR17/1616 Timothy D. Zessin, Esq. KP Law 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney Zessin: I have received the petition of Maya Shaffer of Critical MA appealing the response of the Town of Shirley (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Shaffer requested "[a]ll complaints and IA files" for three identified individuals from 2014 to the present. See SPRl 7/1569 Determination of the Supervisor of Records (November 9, 2017). 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 defmed 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. Current appeal The Town provided responsive records on October 31, 2017 with certain portions redacted. The Town also provided responses dated November 6, 2017 and November 9, 2017 with additional records and information about its exemption claims. The Town cites Exemptions 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

Timothy D. Zessin, Esq. SPRl 7/1616 Page 2 November 22, 2017 (a), (c), and (f) of the Public Records Law to justify its redactions and the withholding of certain responsive records. With respect to Exemption (a), the Town cites G. L. c. 41, § 97D, G. L. c. 151A, § 46(a), and G. L. c. 93H to justify certain redactions within responsive records. Regarding Exemption (c), the Town explains "all disciplinary letters attached to the records responsive to Request No. 1, as well as all references to disciplinary action within those records, were redacted as 'personnel information."' With respect to Exemption (f), the Town asserts "[w]here identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive records will be withheld in their entirety." The Town also redacted the "names and other identifying information of complainants and voluntary witnesses." In her appeal petition, Ms. Shaffer notes that "I still need a list of the records responsive to my request including any records withheld entirely." She also explains it is unclear whether certain records exist. I find the Town must describe which responsive records were withheld in their entirety under Exemptions (a), ( c ), and (f). See Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). The Town must also confirm whether any additional "complaints and IA files" exist. 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, § 1O (a)(ii). I understand a Public Records Division staff attorney contacted you and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Town is ordered to provide Ms. Shaffer 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 ofthis response to this office at pre(a),sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Maya Shaffer