Cynthia B. Gardner v. Cotuit, Town of - Fire District (SPR 20180457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2018 SPRlS/457 Paul J. Hodnett, Esq. Rubin and Rudman, LLP 53 State Street Boston, MA 02109 Dear Attorney Hodnett: I have received the petition of Cynthia Gardner appealing the response of the Town of Cotuit Fire District (Fire District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gardner requested a copy of the Fire District's written response to the October 30, 2017 decision of the Audit, Oversight and Investigations Unit of the Office of the Inspector General. Previous appeals The responsive record was the subject of previous appeals. See SPRl 8/028 Determination of the Supervisor of Records (January 9, 2018); SPR18/135 Determination of the Supervisor of Records (February 12, 2018). In my February 12th determination I found that the correspondence in the possession of the Fire District drafted in response to the Inspector General's October 30th decision detailing the corrective measures that the Fire District has or will put into place cannot be withheld pursuant to G. L. c. 12A, § 13. I also found that with respect to Exemption (f), the Fire District had not demonstrated how the exemption applies to withhold the record, or whether the Fire District is in the midst of an investigation. I ordered the Fire District to provide Ms. Gardner with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. Ms. Gardner sought further assistance from this office and SPRl 8/457 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 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). 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

Paul J. Hodnett, Esq. SPR18/457 Page 2 April 18, 2018 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 Fire District's April lih response I understand that Richard Pisano of the Fire District provided a response to Ms. Gardner on April 12, 2018. In this response, Mr. Pisano asserts "[b] oth our attorney and Mr. Cohen have responded that no letter was sent to our attorney or us regarding the matter since we submitted our response in Nov. 2017. Further, Mr. Cohen has declined to state that the matter is closed at his office." Mr. Pisano also notes "I am sorry that this matter drags on but until the Inspector General provides us with clarification that the matter is closed, the correspo·ndence and minutes remain sealed." I find that despite its April lih response, and for the reasons articulated in my February 12th determination, the Fire District has not met its burden to withhold the responsive record under an exemption to the Public Records Law. G. L. c. 66, § lO(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 Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly, the Fire District is ordered to provide Ms. Gardner the responsive record 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. Sincerely, ~ u r r ~ Supervisor of Records cc: Cynthia Gardner Richard Pisano