Amy Leonard v. Hingham, Town of - Board of Selectmen (SPR 20180896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

July 2, 2018 SPR18/896

Thomas Mayo

Town of Hingham-Town Administrator 210 Central Street

Hingham, MA 02043

Dear Mr. Mayo:

I have received the petition of Amy Leonard appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, Ms. Leonard requested “[a] less redacted copy of the settlement agreement in the amount of $86,500 that was issued to a Town employee since this information has already been released to another news outlet.” The Town provided a response on June 14, 2018, which included responsive records in redacted form. Unsatisfied with the Town’s response, Ms. Leonard petitioned this office and this appeal, SPR18/896, was opened as a result.

Petitions to the Supervisor of Records

Ms. Leonard is reminded that when appealing to the Supervisor of Records, the requestor “shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . .” 950 C.M.R. 32.08(1)(g).

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, § 1OA(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, § 10(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

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

Thomas Mayo SPR18/896 Page 2 July 2, 2018

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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Town’s June 14" response; burden of specificity

In its June 14, 2018 response, the Town indicates that it has attached a copy of the records responsive to.Ms. Leonard’s request. Although the Town provided responsive records in redacted form, the Town did not meet its burden to specifically claim an exemption or exemptions to withhold the redacted portions of the requested records. G. L. c. 66, § 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 ...”).

The Town redacted portions of the responsive records without claiming any exemption(s) to the Public Records Law that would support the redactions made in the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. As a result, I find the Town did not meet its burden of demonstrating how the redacted portions of the records are exempt from disclosure. If the Town maintains the redacted portions are exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the redacted portions of the responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal.

Conclusion

Accordingly, the Town is ordered to provide Ms. Leonard 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 pre@sec.state.ma.us.

Thomas Mayo SPR18/896 Page 3 July 2, 2018

Alena

Rebecca S. Murray fbecea Muna

Supervisor of Records

cc: Amy Leonard