Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 29, 2019 SPR19/0099 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, on behalf of Pat Kager, appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Clairmont requested "the audio of the March 2017 WWC meeting." Previous appeal This request was the subject of three previous appeals. See SPR18/l 710 Determination of the Supervisor of Records (November 30, 2018); SPR18/2025 Determination of the Supervisor of Records (December 19, 2018); SPR18/2075 Determination of the Supervisor of Records ih (January 7, 2018). In my January determination I ordered the Town to provide a response to Ms. Clairmont "clarifying whether the recording was created and if so whether they are in possession of the record or if it was permissibly destroyed." The Town responded on January 9, 2019. Ms. Clairmont appealed and SPR19/0099 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, § 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 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 Page 2 January 1, 2019 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. Current appeal In its January 9th response to Ms. Clairmont the Town asserts "[u]pon speaking with the Waste Water Department Assistant (Ms. Pia Webster) the March 16, 2017 Regular Meeting of the Waste Water Commission was not audio recorded due to human error." In her appeal petition Ms. Clairmont claims "[i]n review of the March 16T\ 2017 meeting it is implausible that a tape recording was not made-given the level of detail with quotes depicted in the minutes." 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Further, G. L. c. 66, § lO(b) provides that a written response shall: (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; G. L. C. 66, § 1O (b )(ii)-(iii). I find that in light of its January 9th response that indicates the Town confirmed with the Waste Water Department that the meeting was not audio recorded, I find the Town has met its burden in responding to this request. G. L. c. 66, § 10(a )(ii), lO(b )(ii)-(iii). Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Clairmont