Morgan Turner v. Marshfield, Town of - Town Administrator (SPR 20190368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 1, 2019 SPR19/0368 Audrey LaCoste Records Access Officer Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Ms. Lacoste: I have received the petition of Morgan Turner appealing the response of the Town of Marshfield (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 12, 2019, the requestor sought "all police and fire logs within the last 2 weeks pertaining to 505 south river st." The Town denied the request claiming the records were exempt from disclosure. 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); 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, § 1O (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

Audrey LaCoste SPR19/0368 Page2 March 1, 2019 The Town's February Jih Response The Town states in their February lih response that "[u]nfortunately the record is exempt from release and I will not be able to provide it to you at this time." The Town indicates they have "checked all of our records for the last 2 weeks re: 505 So. River St. in our town." A records access officer (RAO) has a duty to comply with requests for records, which extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). An RAO must explain whether it possesses any responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii). Any denial issued by an RAO must be done in a manner consistent with G. L. c. 66, § lO(a-b) and 950 C.M.R. 32.06(c)(3). All denials must include specific identification of the records sought, identification of which records the custodian possesses, identification and explanation of any claimed exemptions or privileges, identification of any records not within the custodian's possession and identification of the custodian who may be in possession of those records. 950 C.M.R. 32.06(c)(3). The Town is advised that if they are unable to identify the records sought in the request, they are under a duty to assist the requestor in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). Burden of specificity in responding; claiming exemptions The Town denied this request without providing the requisite specificity to withhold, in their entirety, the records requested pertaining to the specified address. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity an exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a).

Audrey LaCoste SPR19/0368 Page 3 March 1, 2019 Order Given that the Town has not met its burden of specificity in withholding, in their entirety, the requested records, the Town is ordered to review the responsive records, redact where necessary and provide the minutes to Morgan Turner in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response that accompanies the records 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: Morgan Turner