Jude Ahern v. Wellfleet, Town of - Town Clerk (SPR 20180927)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6,201 8 SPR181927 Joseph Powers, MMCICMMC Town of Wellfleet - Town clerk 300 Main Street Wellfleet, MA 02667 Dear Mr. Powers: I have received the petition of Jude Ahern appealing the response of the Town of Wellfleet (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 23,201 8, Jude Ahern requested "copies of the audio recordings made of the Wellfleet Charter Review Committee meetings from July 19,201 6 through January 8,201 8." The Town provided a response on March 15,2018 , providing a fee estimate and indicating it requires additional time to search and confirm whether records exist. Jude Ahern paid the requested fee on March 27,201 8. On May 9,2018 and June 2,201 8, Jude Ahern inquired about the status of her request. After receiving no response, Jude Ahern petitioned this office and this appeal, SPR181927, 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, 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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 1 1 (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. - One Ashburton Place, Room 1719, Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Joseph Powers, MMCICMMC Page 2 July 6,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(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 March 15~'' response In its March 15,2018 response, the Town indicates that after a careful review of Jude Ahern's request it was informed that ". . . a personal audio device was used intermittently by a member of the Committee for the sole purpose of preparing some of the Charter Review Committee's meeting minutes." The Town notes that ". . . additional searching will be required to confirm whether any recordings still exist at this time since all the meeting minutes have been prepared and approved by the Committee." The Town posits that if Jude Ahern prefers to have the Town conduct any additional search for responsive records, the requestor should pay the estimated fee it has provided. The Town notes that upon receipt of payment, it would then "begin the work necessary to search audio records [the requestor] requested to confirm whether any records exist at this time." The Town claims that it "shall produce the requested records, subject to withholding or redactions, within 15 business days of receiving payment." Subsequent to the opening of this appeal, I learned that on July 2,201 8, the Town provided the requestor with a supplemental response pertaining to this request. Conclusion Accordingly, whereas this appeal was opened because of the Town's failure to provide a supplemental response or responsive records, I will now consider this administrative appeal closed. The requestor may appeal the substantive nature of the Town's response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jude Ahern