John Fink v. Wareham, Town of (SPR 20181107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supelvisor of Records August 7,201 8 SPRl811107 Jenna L. Deane Department Assistant 111- Clerlc's Office Town of Wareham 54 Marion Rd Wareham, MA 02571 Dear Ms. Deane : I have received the petition from John Fink, Esq, appealing the response from the Town of Wareham (Town) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Attorney Fink made a public records request on July 12,2018 to the Town requesting documents pertaining to "emails sent or received by the Town Manager" over a three year period. In the Town's response on July 24,2018, the Town denied Attorney Finks' request stating that is was not a public records request due to ongoing litigation under 950 C.M.R. 32.06(g). Attorney Fink appealed the Town's response to this office via email on July 24,201 8. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, 5 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 1O (b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 of records at the time of the request. See G. L. c. 66, 5 1O (a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, 5 lO(b) (iii). 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) (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. . ." ); 950 C.M.R. 32.06(3); see - 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

Ms. Jenna L. Deane Pg. 2 August 7,201 8 also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). It is unclear exactly what records the Town has within its possession. See G. L. c. 66, 5 1O (a)(ii), (b)(ii) (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 of records at the time of the request). If the Town is withholding the requested information it must identify the withheld information, cite an exemption as the basis of the withholding and explain why the exemption applies. See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the Town is ordered to review the requests made by Attorney Fink and provide a response in accordance with the Public Records Law, its Access Regulations and this order 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 V Supervisor of Records cc: John Fink, Esq.