Brian Keaney v. Dedham, Town of - Town Clerk (SPR 20190952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca 8. Murray Supervisor of Records

May 24, 2019 SPR19/952 Paul Munchbach Town Clerk Dedham Town Hall 26 Bryant Street

Dedham, MA 02026

Dear Mr. Munchbach:

I have received the petition of Brian Keaney appealing the nonresponse of the Town of Dedham’s Town Clerk (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Keaney sent a request on March 7, 2019 to the Town for records pertaining to executive session minutes. In an email on May 9, 2019, Mr. Keaney filed an appeal with this office stating the Town has not responded or produced records responsive to his request.

Appeal

Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response.

itis the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based...”); 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).

It is unclear if the Town possesses the records requested by Mr. Keaney. See G. L. c. 66, § 10(a)(ii), (b) (ii), (iii). 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 of records at the time 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

Paul Munchbach SPR19/952 Page 2 May 24, 2019

the request. See G. L. c. 66, § 10(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). If the records are within the Town’s possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption).

Accordingly, the Town is ordered to review the requests made by Mr. Keaney and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order within ten 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.

Lylason

Kolueca. S. Murray Supervisor of Records

cc: Brian Keaney