Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20181465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 18, 2018 SPRlS/1465 Mary Lou Folan Town Clerk Norwood Town Hall 566 Washington Street, 2nd Floor, Room 32 Norwood, MA 02062 Dear Ms. Folan: I have received the petition of Mr. Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On August 6, 2017, Mr. Donovan requested a number of public records from the Town. Mr. Donovan appealed the nonresponse by the Town to this office on September 19, 2018. The Town provided a response to Mr. Donovan's public records request on Septemeber19, 2018 producing requested records. Mr. Donovan then sent an email on October 3, 2018 to our office appealing the Town's response asserting that "[t]he records produced were not completely responsive, missing key parts and not in the time frame under the law." 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. 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

Ms. Mary Lou Folan SPR18/1465 Page 2 October 18, 2018 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. Appeal Mr. Donovan states that "[t]he 10 day time limit for a response was not followed; the 25 day time limit for production was also not followed." The Town must response to all public records requests within 10 business days. G. L. c. 66, § lO(a)-(b). G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." The Town provided a response to Mr. Donovan's August 6, 2018 records request on August 7, 2018. Although the Town's response to Mr. Donovan was within 10 business days, it is unclear whether it satisfied the provisions of G. L. c. 66, § lO(b). G. L. c. 66, § lO(b)(i), (iv), (vii)-(ix). Subsequent to the intervention by a member of the Public Records Division staff, this office was notified that a response was provided to Mr. Donovan by the Town on September 27, 2018 as mentioned above. Mr. Donovan is requesting electronic copies of the records. 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). Mr. Donovan contends that certain documents remain outstanding, specifically a fuel feasibility study, certain attachments, and communications between the Town and other parties. See G. L. c. 66, § 10 (b )(ii). Mr. Donovan believes that the reasoning for the missing documents is that the Town is withholding them without providing exemptions. It is unclear what types of responsive records the Town is withholding, if any. See G. L. c. 66, § 1 O(b)(iv) (a written response shall "identify); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). If the Town is withholding documents, it must cite an exemption to allow for the withholding of records. When withholding requested records, a records custodian is required to provide a response that identifies "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." G. L. c. 66, § lO(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a ); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Open Meeting Law Mr. Donovan's appeal relates to the release of executive session minutes which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open

Ms. Mary Lou Folan SPR18/1465 Page 3 October 18, 2018 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 the content of the executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. Conclusion Accordingly, the Town is ordered to provide a response in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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: Mr. Christopher Donovan