Connie Guerriero v. Salisbury, Town of (SPR 20190893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 17, 2019 SPR19/893 Melinda J. Morrison Town Clerk and Records Access Officer Town of Salisbury 5 Beach Road Salisbury, MA 01952 Dear Ms. Morrison: I have received the petition of Connie Guerriero, Esq. appealing the response of the Town of Salisbury (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Guerriero requested "copies of any and all permits, work orders or other documents relating to any repair work performed by any and all city workers, contractors, third parties for work performed at [a] specific location from 2013 to the present." The Town responded on May 3, 2019 and Attorney Guerriero appealed. 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. Appeal In its May 3rd response the Town indicates that it" ... has only two records in response to your request." You note that "[t]he two records include the [T]own's response to your June 19, 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

Melinda J. Morrison SPR19/893 Page2 May 17, 2019 2017 records request which happens to be the same exact request as this one and the MIIA insurance letter that denies Ms. Kelly's claim. Other than those two documents which are enclosed the Town of Salisbury does not have any other records responsive to this request." In her appeal petition Attorney Guerriero indicates that the Town's response" ... does not disclose whether any permits were pulled for work performed at 86 Central A venue, Salisbury by the town or a third party." She further notes that "[t]he letter only addresses 'documents' that are in their possession which are correspondence between our office and the town. Please allow this email exchange to request an appeal from the Commonwealth as it does not provide our office with a definitive answer relative to the pulling of permits and our office has reason to believe that the sidewalks were repaired within five years from the date of incident." Existence ofr esponsive records 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). In light of the issues raised in Attorney Guerriero's appeal regarding the existence of responsive records, and despite the Town's response, I find it is unclear why additional responsive records have not been provided. Specifically, the Town must explain whether additional responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please be advised, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Town is ordered to provide Attorney Guerriero with a response provided in a manner consistent with this order, the Public Records Law, and it's 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: Connie Guerriero, Esq.