Ian D. Roffman v. Newton, City of - City Clerk (SPR 20180134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 13,201 8 SPRl81134 Maura O'ICeefe, Esq, City of Newton - Law Department Newton City Hall, Room 208 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Attorney O'Keefe: I have received the petition of Ian D. Roffman, Esq. of Nutter McClennan & Fish, LLP, on behalf of his clients Michael and Dena Rashes, appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Roffman requested all email communications sent to and from City Councilor Alison Leary, including emails in Councilor Leary's personal email account, relating to six defined subject matters. In October and November 20 17, the City provided Attorney Roffman with responsive emails, including attachments. In his January 29t'1p etition, Attorney Roffman contends that the City's response is incomplete, and that there may be additional emails that have not been provided. As a result, this appeal was opened. 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, 5 10A(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, 5 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, 5 lO(d)(iv) (written response must "identify any records, categories ,of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (1995) (custodian has the 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

Maura O'Keefe, Esq. Page 2 February 13,201 8 burden of establishing the applicability of an exemption). In his petition, Attorney Roffman explains that in a November bthl etter to the City's Solicitor, Attorney Roffman included three examples of emails that are responsive to the request, but were not provided by the City. Attorney Roffman informed this office that he has not received the omitted emails, nor an explanation concerning any emails that were not provided. In a February 8tht elephone discussion with a Public Records Division staff attorney, you explained that the City has conducted a diligent search for Councilor Leary's email records, and that the City will provide Attorney Roffman with a supplemental response explaining the details of how the search was conducted. It is my understanding that the City's Law Department will provide any additional records that were found in the search, and advise Attorney Roffman concerning any records that the City has withheld under the exemptions in the Public Records Law, and any records that the City believes do not exist. Specificity in claiming exemptions in the Public Records Law The City is advised that pursuant to the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. G. L. c. 66, fj 10 (b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. ." ); see also Globe Newspaper Co. v. Police Cornm'r, 419 Mass. 852, 857 (1995); Flatlev, 419 Mass. at 5 11. Order Accordingly, the City is hereby ordered to provide Attorney Roffman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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, Rebecca S. Murray Supervisor of Records cc: Ian D. Roffman, Esq. David A. Olson, City Clerk