Beth Treffeisen v. Bourne, Town of (SPR 20190975)

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

Rebecca S. Murray Supervisor of Records

June 3, 2019 SPR19/975 Barry H. Johnson Town Clerk and Records Access Officer Town of Bourne 24 Perry Avenue 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, § 10A; 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 appeals

The responsive record was the subject of prior appeals. See SPR19/221 and SPR19/511 Determinations of the Supervisor of Records (February 14, 2019 and March 19, 2019). In my March 19" determination, I ordered the Town to provide Ms. Treffeisen with a response consistent with the order, the Public Records Law and its Regulations.

The Town responded on April 5, 2019 by withholding the entire report under the attorney-client privilege and the work product doctrine. Subsequently, on May 14, 2019, the Town provided Ms. Treffeisen with the responsive report, but withheld certain information contained in the report. Ms. Treffeisen appealed and SPR19/975 was opened as a result.

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, § 10A(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, § 10(b)(iv) (written response must “identify

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 SPR19/975 Page 2 June 3, 2019

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).

Current appeal

In her May 17, 2019 appeal Ms. Treffeisen contends that she has not received the full report and notes that she has not received a three page summary with the certified playground specialist’s opinion and explanation of the report, certain pictures, and an appendix with definitions. She asks that this office obtain the full report.

Burden of specificity

This office was provided with the portions of the report that were released to the public, including Ms. Treffeisen; however, the Town did not provide a response to accompany the report.

I find the Town has not met its burden to show how an exemption applies to withhold portions of the responsive records; specifically, the Town does not describe which portions of the report have been redacted or withheld, nor does it explain how an exemption under G. L. c. 4, § 7(26)(a)-(u) or privilege applies to these portions. Further, due to the issues raised in the appeal regarding the content of the record, it is unclear how an exemption can apply to the withheld portions of the records. See 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...”). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Order

Accordingly, the Town is ordered to provide Ms. Treffeisen 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,

Rebecca S. Murray Supervisor of Records cc: Beth Treffeisen Robert S. Troy, Esq.