Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 29, 2019 SPR19/0084 James Hagerty Town Administrator Town of Edgartown P.O. Box 35 Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of Catherine Clairmont appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Clairmont requested "2 attachments referenced in the attached Oct 11 email from DT [t]o PW." Previous appeal This request was the subject of a previous appeal. See SPRl 8/2091 Determination of the Supervisor of Records (January 9, 2019). In my January 9th determination, the appeal was closed after the Town confirmed in an email sent to this office on January 9, 2019 that all responsive records had been provided. Ms. Clairmont appealed this response and SPRl 9/0084 was opened as a result. 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, § IO(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

James Hagerty SPR19/0084 Page2 January 29, 2019 Current appeal In its January 9th response the Town asserts "[t]he Town of Edgartown (the 'Town') has provided you with records that fulfill the following" and list two categories of records. This includes: "l. All correspondence to and from The Wastewater Commissioners, the Wasterwater staff and the following individuals ... " and "2. All correspondence to and from The Wastewater Commissioners, the Wasterwater staff." In her current appeal petition Ms. Clairmont claims "[t]here is a specific missing record that we clearly identified in our last appeal" and "in making a request for sending this additional specific missing record we have not received a response." In light of the Town's response and Ms. Clairmont's claim, I find it is unclear why additional responsive records have not been provided; specifically, the Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 1 O(a)(ii), (b )(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please note, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the Records Retention Manual, available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Town must provide Ms. Clairmont with a response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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: Catherine Clairmont