Richard F. Kennedy Jr. v. Norfolk County Commissioners (SPR 20181331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1 7, 2018 SPRlS/1331 Nancy R. McNealy Public Records Access Officer County of Norfolk Commissioners Office 614 High Street, Suite 201 P.O. Box 310 Dedham, MA 02027-0310 Dear Ms. McNealy: I have received the petition of Richard F. Kennedy appealing the response of the Norfolk County Commissioners (Commissioners) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kennedy requested 19 categories ofrecords, many of which relate to the "County Surveyor." The Commissioners initially responded on July 26, 2018 by providing a fee estimate of $80.00 for the production of certain responsive records, but also indicated other records would be withheld under Exemptions ( a) and ( c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). I understand Mr. Kennedy paid the fee amount and the Commissioners provided certain responsive records on August 23, 2018. 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, § 1 O(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. 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

Nancy R. McNealy SPR18/1331 Page2 September 17, 2018 Appeal In his appeal petition Mr. Kennedy indicates he objects to the Commissioners' response to requests 17, 18, and 19. He also notes "there is some question whether all of the emails sought in request 1 and 2 as well as documentation in request 3 have been produced in the August 23, 2018 response." Mr. Kennedy's appeal also is related to the release of executive session minutes which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to public status and/or content of the executive session minutes at issue. See G. L. c. 30A, § 23. It is recommended that the parties contact the AGO should they seek a determination on this issue. · Subsequent to the opening of this appeal, this office received a supplemental response from Attorney Nancy Campany, on behalf of the Commissioners, dated September 11, 2018. This response contains additional information regarding the Commissioners' exemption claims and also explains "the Commissioners in fact provided all emails and documents that are or might be responsive to Kennedy's requests 1, 2 and 3 (and requests 7, 8, and 9)." In correspondence dated September 17, 2018, Mr. Kennedy indicates he continues to object to portions of the Commissioners' response. It is my determination that in light of the ih September 11th response from the Commissioners and the September 1 correspondence from ih Mr. Kennedy, this appeal is closed. The issues raised in Mr. Carr's September 1 correspondence will be addressed in a subsequent appeal (SPRl 8/13 78). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Richard F. Kennedy Nancy Campany, Esq. Carrie Benedon, Esq.