Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20181002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23,2018 SPR1811002 Beth Willis Town Clerk Town of Topsfield 8 West Common Street Topsfield, MA 01983 Dear Ms. Willis: I have received the petition of Kim Shenvood appealing the response of the Town of Topsfield (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 26,2018 , Ms. Sherwood requested a "[clopy of the job scoring complete by Selectman Bermudez, A1 Wallace and Roberta Sapienza for the new position of Town Clerk/ RAO." On July 5,2018, the Town responded to her request claiming ''[nlo public records are in existence." 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 1O A(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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 3 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Beth Willis Page 2 July 23,2018 Tlte Town's July 5'" response In its response, the Town indicates that "[nlo public records are in existence." The Town explains that with respect to Ms. Sherwood's request for the job scoring sheets completed by A1 Wallace and Roberta Sapienza, "Roberta and Allan are not.. .members of a public body.. .and their personal notes are not a public record." Based on the Town's response, it is unclear whether the Town possesses responsive records. The Town is advised that under the Public Records Law all documentary materials or data, regardless of physical form or characteristics, made or received by the Town is presumed to be a public record. G. L. c. 4, 5 7(26). If the scoring sheets were received by the Town, they are presumed to be public records. See id. If the Town possesses the scoring sheets and intends to withhold them, it must claim an exemption under the Public Records Law. See G. L. c. 66, 5 1O (b)(iv); 950 C.M.R. 32.06(3). As a result, I find the Town has not met its burden in responding to this records request. G. L. c. 66, 5 lO(a-b). The Town must provide a response to Ms. Sherwood that provides additional information regarding whether the Town possesses responsive records. G. L. c. 66, 5 10(b)(iv) (a written response shall "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.. ."); Flatlev, 419 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). Order Accordingly, the Town is ordered to provide Ms. Sherwood 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. Sincerely, V Rebecca S. Murray Supervisor of Records cc: Kim Sherwood