James J. DeVellis v. Foxboro, Town of - Town Clerk (SPR 20182065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 7, 2019 SPR18/2065 Robert E. Cutler, Jr. Town Clerk Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of James J. DeVellis appealing the response of the Town of Foxborough (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. DeVellis requested copies of two executive summaries, detailed full reports, and invoices. In a response dated December 18, 2018, the Town provided portions of responsive invoices, but withheld the executive summaries and detailed full reports pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). I understand this request is similar to the subject of a previous appeal. See SPRl 8/1731 Determination of the Supervisor of Records (December 5, 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, § 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

Robert E. Cutler, Jr. SPR18/2065 Page 2 January 7, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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. DeVellis appealed the Town's denial of the executive summaries and detailed full reports. Subsequent to the opening of this appeal, the Town provided a response on January 7, 2019 that included additional responsive records with portions redacted. Mr. DeV ellis responded on the same day and noted "[i]t appears that only one authored report (referenced as Item 2 in in your letter) was attached but there was no reference to the second report (referenced as Item 1 in your letter) that was specifically requested. Can you please advise on that requested report." Attorney Jaime Kenny, on behalf of the Town, provided an additional response on ih. January In this response Attorney Kenny notes" ... we were remiss in not including a response for Attorney Dan Bair's reports (request #1). Attached please find a response for request #1, the Executive Summary of Attorney Bair's report." Attorney Kenny also notes that the full report needs to be review for redactions and that "[w]e can have the full report for you tomorrow." ih In light of the Town's January responses in which it provides additional records and information, I will consider this appeal closed. Mr. DeV ellis may appeal the substantive nature of the Town's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: James DeV ellis