Michelle Loubert v. Great Barrington, Town of - Housing Authority (SPR 20191362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 23, 2019 SPR19/1362 Tina Danzy Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Ms. Danzy: I have received the petition of Michelle Loubert appealing the response of the Great Barrington Housing Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Loubert requested records related to an identified individual. The Authority responded to her request by providing some responsive records and indicating others had been withheld. 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, § IOA(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, § 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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.

Tina Danzy SPR19/1362 Page 2 July 23, 2019 Burden of specificity in responding and claiming exemptions Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Authority's response did not contain the specificity required in a denial of access to public records. Although the Authority indicates that "[t]he separation agreement is not a public document and therefore is not available," it is unclear which exemptions under the Public Records Law the Authority is claiming to withhold such record or how the exemptions apply to withhold the requested record. The Authority must provide a detailed response to specifically explain how the claimed exemptions apply to withhold the requested record in compliance with the Public Records Law. See G. L. c. 66, § 1O (b )(iv). Order Accordingly, the Authority is ordered to provide Ms. Loubert with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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. · Sincerely, ~~. Rebecca S. Murray Supervisor of Records cc: Michelle Loubert