Beth Treffeisen v. Bourne, Town of (SPR 20190511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2019 SPR19/511 Barry H. Johnson Town Clerk and Records Access Officer Town of Bourne 24 Perry A venue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of Beth Treffeisen of the Cape Cod Times appealing the response of the Town of Bourne (Town) to a request for public records. G. L. c. 66, § 1O A; 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." Prior appeal The responsive record was the subject of a prior appeal. See SPR19/221 Determination of the Supervisor of Records (Supervisor) (February 14, 2019). In an initial response to Ms. Treffeisen, you wrote, "the records sought are not within the possession currently or control of this officer." In my February 14th determination, I ordered the Town to provide a response to the request, and explain whether an agency relationship existed between the Town and the third party who was hired to assess the playground's safety and whether the record(s) could be provided. Appealing the Town's subsequent response, Ms. Treffeisen indicates, "[t]he letter does not address the issues raised in the [S]upervisor's finding, nor does it address [T]own [C]ounsel who is in possession of the document." The Town's response to my February determination, received by this office on March 6t\ asserts, "[p]ursuant the Public Records Request of the Cape Cod Times for a document purportedly authored by Nancy White, I have contacted the following TOWN officials 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 SPR19/511 Page 2 March 19, 2019 and received responses that none of the individuals have possession of the requested document. Additionally, as RAO, I have not seen the document and do not have a copy of the document in my possession or at the office of the Town Clerk." The Town then listed the names and titles of the respondents. Public records; agency relationship 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 should be noted that the Public Records Law requires a record custodian to take steps to acquire those records of which he is entitled to and which are not in his possession. See G. L. c. 66, § 13 (whoever is entitled to the custody of public records shall demand the same from person having possession of them). Public officers have a duty to provide any public records in their possession to the Town. See id. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, it is unclear how the Town does not have a right to obtain the requested record(s) from the third-party who may be in custody or control of the record(s). Further, I advise the Town as I did in my February determination that 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. It is my understanding Ms. White was paid with Town funds to inspect/audit the safety of the Buzzards Bay Park playground, and provide the Town with her findings. Therefore, it is unclear how an agency relationship does not exist between the Town, including its Legal Counsel Robert S. Troy, Esq., and Nancy White. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607- 08 (1996) ( discussing agency relationship between a public and private entity within the context of the Public Records Law). Consequently, I find the Town's response does not adequately explain why it cannot obtain the record(s) from the third party, including the Town's Legal Counsel, and how it cannot produce responsive records. I find the Town has not met its burden of specificity in responding to this request, to my February 14th determination, and in denying access to the record(s).

Barry H. Johnson SPR19/511 Page 3 Mar-ch 19, 2019 Conclusion Accordingly, the Town is ordered to provide Ms. Treffeisen with a response 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 Robert S. Troy, Esq, Troy Wall Associates