Brian Dowd v. Oak Bluffs, Town of - Town Administrator (SPR 20181677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2018 SPR18/1677 Mr. Robert Whritenour Town Administrator Town of Oak Bluffs P.O. Box 1327 Oak Bluffs, MA 02557 Dear Mr. Whritenour: I have received the petition of Brian Dowd of the Martha's Vineyard Times appealing the response of the Town of Oak Bluffs (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dowd requested "[a]ny and all records of the internal police investigation into Oak Bluffs Police Detective ... and the outcome of that investigation." The Town responded to his request claiming to not possess responsive records. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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

Robert Whritenour SPR18/1677 Page 2 November 28, 2018 Compliance with the requirements ofp roviding a response The Town indicates in its response that "[a]t this time, the Town does not have any documents available to satisfy your request." The Town further indicates that "[w]ithout acknowledging the existence of what you allege is an internal investigation, even if any documents existed, they would not be available while any such investigation is still on-going." Although the Town provided a response to Mr. Dowd's request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) 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, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and

Robert Whritenour SPR18/1677 Page 3 November 28, 2018 (ix) include a statement informing the requestor of the right of appeal to the supervisor ofrecords under subsection (a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b ). While this appeal was pending, Mr. Dowd notified this office that the Town provided him with another response which included redacted responsive records. Mr. Dowd indicates he takes issue with the Town's redaction of the responsive records. Based on the correspondence provided by Mr. Dowd, the Town's basis for the redactions is unclear. The Town is advised that if it intends to withhold portions of responsive records, in order to comply with the Public Records Law, the Town must claim an exemption under the Public Records Law and explain with specificity its applicability to the withheld portions. See G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3). As a result, I find the Town has not met its burden in responding to this records request. See G. L. c. 66 § lO(a-b). · Order Accordingly, the Town is ordered to provide Mr. Dowd 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: Brian Dowd