Mark S. Ferguson v. Holden, Town of - Town Manager (SPR 20171740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 20, 2017 SPR17/1740 Peter M. Lukes Town Manager Town of Holden 1204 Main Street Holden, MA O1 520 Dear Mr. Lukes: I have received the petition of Mark Ferguson appealing the response of the Town of Holden (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). In his request Mr. Ferguson references a specific complaint filed with the Massachusetts State Ethics Commission and requested "a copy of any and all correspondence from the Massachusetts State Ethics Commission that may have addressed and/or dismissed the above mentioned complaint." In a response dated October 13, 2017, the Town denied access to responsive records under Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G.L. c. 268B, §§ 4, 7. 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. The Town's October Ji" response In its October 13th response the Town cites G.L. c. 268B, §§ 4, 7 and asserts "disclosure 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

Peter M. Lukes SPRl 7/1740 Page 2 December 20, 2017 of the complaint and/or response from the State Ethics Commission may qualify as a violation of the confidentiality of a State Ethics Commission initial inquiry ...." However, the Town has not met its burden to show how its records, including "any and all correspondence" sought by Mr. Ferguson are the type ofrecords contemplated by G.L. c. 2688, §§ 4, 7. Flatley, 419 Mass. at 511 (eustodian has the burden of establishing the applicability of an exemption). In addition, it is unclear what type of responsive records the Town possesses. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the Town is hereby ordered to provide Mr. Ferguson 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 QI~~.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mark Ferguson