Corey Spaulding v. Natick, Town of (SPR 20191044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 5, 2019 SPR19/1044 Ms. Diane Packer Town of Natick 13 East Central Street Natick, MA 01760 Dear Ms. Packer: I have received the petition of Ms. Corey Spaulding appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 11, 2019 Ms. Spaulding requested "any and all documentation regarding the Natick Board of Selectman's Memorandum of Understanding with the Natick Soccer Club" as well as "any and all documentation regarding Saul Berelowitz[' s] appointment to the Audit Advisory Committee." Previous Appeal This request was the subject of a previous appeal, SPR19/0989. See Determination of the Supervisor of Records (May 24, 2019). In my May 24th determination, I ordered the Town to provide the requestor with a response without delay, in accordance with the Public Records Law, its Access Regulations and the order. Following the May 24th determination, a response was provided to Ms. Spaulding. Unsatisfied with this response, Ms. Spaulding appealed to this office and SPR19/1044 was opened as a result. Current Appeal In her appeal, Ms. Spaulding claimed that the records provided by the Town were not "a complete record." Further, she claimed that "there are copies of checks" and that "legal counsel [was] involved." 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 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. Diane Packer SPR19/1044 Page2 June 5, 2019 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, § IO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Records in its possession, custody and control; Records management and retention 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, § IO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). In light of the issue raised by Ms. Spaulding's May 24th appeal regarding the existence of responsive records, I find it is still unclear whether the Town has additional records that have not been provided. Specifically, the Town must explain what responsive records exist, and whether additional responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § IO(a)(ii), (b)(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please note, all municipalities and agencies 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. Conclusion Accordingly, the Town is ordered to provide a response to Ms. Spaulding, 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.

Ms. Diane Packer SPR19/1044 Page 3 June 5, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Andrew Quemere