Lisa Morales v. Wareham, Town of (SPR 20190824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 7, 2019 SPR19/0824 Michele Bissonnette Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Lisa Morales appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Morales requested "a written contract ... to process bills for the Wareham and Onset Fire and Water Districts" and "the number of bills sent by the town on behalf of the Onset Fire District in FY 2017, FY 2018, and FY 2019." After numerous communications between the Town and Ms. Morales, Ms. Morales petitioned this office, claiming that the Town has "thus far not answered" her requests satisfactorily. 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 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. Under the Public Records Law, the Department 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 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. Michele Bissonnette SPR19/0824 Page 2 May 7, 2019 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, § 10(a )(ii). Appeal Prior to the opening of this appeal, the Town had asserted that "no written contract currently exists" and that "the Town has provided all responsive documents." In a follow-up response, you indicated you were in the process of searching for any written contract and had yet to locate any responsive record. With respect to the request for the number of bills sent, you confirmed that all responsive records had already been provided to Ms. Morales on February 26, 2019. In light of the issues raised in Ms. Morales' appeal, I find that the Town must provide Ms. Morales a response clarifying if responsive records exist, and, if they do exist, provide a timeframe for their production. If there are no responsive records, the Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 1O (a)(ii), (b )(ii). Conclusion Accordingly, the Town is ordered to provide Ms. Morales with a response, provided 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, ~r~ Supervisor of Records cc: Lisa Morales