Joseph Dwinell v. Mass Cultural Council (SPR 20181046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31, 2018 SPRlS/1046 Greg Liakos Mass. Cultural Council 10 St. James Avenue, 3rd Floor Boston, MA 02116 Dear Mr. Liakos: I have received the petition of Joe Dwinell of the Boston Herald appealing the response of the Mass Cultural Council (Council) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on June 29, 2018, Mr. Dwinell requested electronic copies of 28 itemized bills from the Council's P-Card expenditures at Davio's Restaurant. The Council provided a response on July 16, 2018, which included responsive records. Contending that the records are incomplete, Mr. Dwinell petitioned this office and this appeal, SPRl 8/1046, 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 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

Greg Liakos SPR18/1046 Page 2 July 31, 2018 Additional records In his petition for appeal, Mr. Dwinell notes "[a] quick review of the records shows numerous entries for 'Misc. Food.' All those items are usually for $25-$50--the most expensive items. Yet most of the other, lower-cost items are for exact, listed purchases .... The Public Records request sought all 'detailed' purchases 'listed' as they would appear on a receipt ... I request that all those 'Misc. Food' items be replaced by the actual purchases, under the state's Public Records Law." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Based on Mr. Dwinell's petition, in conjunction with the Council's response, it is unclear if the Council possesses or could obtain the detailed itemized bills as requested. The Council must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Council is ordered to provide Mr. Dwinell 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, Rebecca S. Murray Supervisor of Records cc: Joe Dwinell