Catherine Benjamin v. Charlton, Town of - Town Administrator (SPR 20190655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR 19/0655 Ms. Robin Craver Charlton Town Administrator 37 Main Street Charlton, MA 01507 Dear Ms. Carver: I have received the petition of Ms. Catharine Benjamin appealing the nonresponse of the Town of Charlton Planning Board (Board) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 3rd, Ms. Benjamin requested "all correspondence and documents, including but not limited to memos, emails, letters, phone call records, relating to the Valley Green Grow LLC and the property located at 44 Old Worcester Road, 7 L Tuner Road and the area commonly referred to as 'Charlton Orchards' and any and all versions of these documents for the time period of April 2018 to the present," including "all members of the Planning Board, the interim Planning Director and Administrative Assistant Jayne Garvey." The Board provided a fee estimate on January gt\ which Ms. Benjamin paid on January 29th. In a conversation with a member of my staff, Ms. Mary Devlin, the Town of Carlton's primary Records Access Officer, indicated that Ms. Benjamin picked up a thumb drive with the responsive records on the same day. Upon reviewing the records, Ms. Benjamin felt that not all responsive records had been provided. On this basis, Ms. Benjamin appealed to this office, and this case, SPR 19/0655 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, § 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

Ms. Robin Craver SPR19/0655 Page 2 April 10, 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. 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. · Under the Public Records Law, the Board is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Appeal Ms. Benjamin provided the Board with a spreadsheet listing the specific documents she felt were responsive to her request but had yet to be provided with her appeal on March 281 h. Subsequent communications with various Town officials indicated that the Planning Board had discussed the request and would provide Ms. Benjamin with additional responsive records. Specifically, the Board indicated that they were in the process of providing emails sent to "members individually from citizens ... even if the member did not respond to the email" to Ms. Jayne Garney, the Administrative Assistant, for compilation and to be provided to Ms. Benjamin. The Board also claimed that they had already provided "all of the official correspondence directed to the Planning office," but would "be happy to provide ... attachments if [Ms. Benjamin] can identify the attachments or point to the email where the attachment was noted." Conclusion Accordingly, it is my understanding that the Board intends to provide Ms. Benjamin with the records she requested. The Board and Ms. Benjamin are encouraged to communicate further to enable the Board to provide the requested public records sought. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Cathrine Benjamin

Ms. Robin Craver SPR19/0655 Page 3 April 10, 2019 Ms. Karen LaCroix Ms. Mary Devlin Mr. William Scanlan