Michael Smith v. Wareham, Town of - Town Administrator (SPR 20171688)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 18, 2017 SPR17/1688 Derek D. Sullivan Town of Wareham-Town Administrator Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Michael Smith appealing the response of the Town of Wareham Town Administrator (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 15, 2017, Mr. Smith requested a "copy of the internal affairs investigation relating to" an identified Wareham Police Sergeant and Police Chief "conducted during the fall of 2016 by an independent investigator." Previous appeals The requested record was the subject of previous appeals. See SPRl 7 /1163 Determination of the Supervisor of Records (September 6, 2017); SPRl 7/1524 Determination of the Supervisor of Records (November 7, 2017). I closed SPRl 7 /1524 with the proviso that the Town provide a response to Mr. Smith in a manner consistent with the order, the Public Records Law, and its Regulations. ih Following the November Determination, the Town provided a supplemental response to Mr. Smith on December 4, 2017, under a cover letter dated November 30, 2017, which included responsive records in redacted form. Contending that the responsive records were "highly redacted," Mr. Smith petitioned this office and this appeal, SPRl 7/1688, was opened as a result. 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 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

Derek D. Sullivan SPRl 7/1688 Page 2 December 18, 2017 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. Exemptions Although the Town provided responsive records and redacted certain portions of the records in its December 4, 2017 response, it is unclear what exemptions under the Public Records Law the Town is claiming to redact the records. The Town is reminded that a custodian has the burden of establishing the applicability of an exemption to withhold a 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). Accordingly, if the Town maintains that the redacted portions of the responsive records are exempt from disclosure, it must provide a written explanation, with specificity how a particular exemption applies to the redacted portions. 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. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Town would provide a supplemental response. Conclusion Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provides said response to Mr. Smith, 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.

Derek D. Sullivan SPRl 7/1688 Page 3 December 18, 2017 Sincerely, ~~ Supervisor of Records cc: Michael Smith