John Fink v. Marion, Town of (SPR 20181126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 1, 2018 SPRlS/1126 Paul F. Dawson Town Administrator Town of Marion 2 Spring St. Marion, MA 02738 Dear Mr. Dawson: I have received the petition from John Fink, Esq. appealing the response from the Town of Marion (Town) to a request for public records. G. L. c. 66, § lOA; 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 19, 2018, the Town denied Attorney Fink's request stating that it was not a public records request and the Town was not obliged to respond under 950 C.M.R. 32.06(1)(g). Attorney Fink appealed the Town's response to this office via email on July 23, 2018. 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, § lO(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, § lO(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 ofrecords at the time of the request. See G. L. c. 66, § lO(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, § 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, § lO(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 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

Mr. Paul F. Dawson SPR18/1126 Page2 August 1, 2018 exemption or exemptions upon which the withholding is based ... "); 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). The Town provided a response to this appeal on July 31, 2018. The Town reaffirmed that the records in their possession should be withheld under 950 C.M.R. 32.06(1)(g). It is unclear exactly what records the Town has within its possession. See G. L. c. 66, § IO(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 ofrecords 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, § IO(b)(iv). In the July 31st response, the Town says that Attorney Fink's public records request is "broad, ambiguous, and umeasonable." The Town may ask Attorney Fink for a more refined search in order to best provide Attorney Fink with the records he is requesting. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). This office encourages both parties to communicate further to enable the Town to provide the requested records. 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, ~~ Supervisor of Records cc: John Fink, Esq.