David E. Lurie v. Hopedale, Town of (SPR 20190052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 22, 2019 SPR19/052 Matthew G. Feher, Esq. KPLaw,P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Feher: I have received the petition of David E. Lurie, Esq. of Lurie Friedman LLP, on behalf of Philip Shwachman, appealing the response of the Town of Hopedale (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 14, 2018 Attorney Lurie requested several categories of records related to a proposed urban renewal plan. The Town provided a response on December 24, 2018 and Attorney Lurie appealed. 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. 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

Matthew G. Feher, Esq. SPR19/052 Page 2 January 22, 2019 Appeal In its December 24th response the Town provided "[n]on-privileged, non-exempt e-mails and attachments thereto responsive to your request," but withheld other records under Exemption (d) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(d). In his January 7, 2018 appeal, Attorney Lurie indicated that the Town" ... provided some documents and a privilege log, and claimed various documents as exempt but did not provide an exemption log or otherwise identify the allegedly exempt documents with specificity." Subsequent to the opening of this appeal, the Town and Attorney Lurie submitted additional correspondence to this office. Specifically, the Town provided additional records and information regarding its exemption claims in a January 10, 2019 response. Attorney Lurie responded on January 16th by indicating that the Town did not provide certain responsive text messages, nor did it provide documents attached to or referenced in text messages. Attorney Lurie also asks this office to order the Town to produce an exemption log. The Town responded on January 1i h by providing additional records and you indicated "[t]he Town has also confirmed that it has produced all texts in the custody, control or possession of the Board including those that predated August 1, 2018 responsive to your request." You also note that" ... the reason the Town is not obligated to provide an exemption log is specified in detail in the January 10, 2019 and December 24, 2018 responses to your underlying request." In light of the Town's supplemental responses that provide additional responsive records, I will consider this appeal closed. Attorney Lurie may appeal the substantive nature of the Town's responses within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: David E. Lurie, Esq.