Beth Treffeisen v. Bourne, Town of (SPR 20190221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 14, 2019 SPR19/221 Barry H. Johnson Town Clerk Town of Bourne 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of Beth Treffeisen from the Cape Cod Times appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Treffeisen requested a copy of "the audit report done on the Buzzards Bay Park by Nancy White, the playground safety inspector." The Town denied Ms. Treffeisen's request in its entirety, stating, "I, Barry H. Johnson, [Records Access Officer] for the [Town] hereby deny [the request] ... because the records sought are not within the possession currently or control of this officer." As a result, Ms. Treffeisen petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 1O (b )(iv) (written response must "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 ... "); 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). 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

Barry H. Johnson SPR19/221 Page2 February 14, 2019 Possession, custody or control of responsive records In her petition, Ms. Treffeisen indicates that the audit report was discussed at a Board of Selectmen meeting on November 6, 2018, but the Town has not released the report. It is Mr. Johnson's contention that the request is denied because he is not in custody or control of the report. Under the Public Records Law, 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). The Town must explain whether an agency relationship exists between the Town and the eonsultant hired to assess the safety of the Buzzards Bay Park (Park). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607 (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. To the extent that an agency relationship exists, records made or received by a third-party consultant hired by the Town are subject to the Public Records Law. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (a ccess to a record requested pursuant to the Public Records Law rests on the content of the record). I find the Town has not met its burden of specificity in responding to this request and denying access to the record(s). Conclusion Accordingly, the Town is ordered to provide Ms. Treffeisen 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: Beth Treffeisen (via email)