Connie Guerriero v. Salisbury, Town of (SPR 20191506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor of Records August 12, 2019 SPR19/1506 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, § lOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 9/893 Determination of the Supervisor of Records (May 17, 2019). In my May 1i 11 determination I ordered the Town to provide Attorney Guerriero with a response provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Town responded on May 31, 2019. Attorney Guerriero appealed and SPRl 9/1506 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, § 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, § 1O (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 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 SPR19/1506 Page2 August 12, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In my May 1 i 11 dete1wination I found it was unclear why additional responsive records have not been provided; specifically, I indicated the Town must explain whether additional responsive records existed and were destroyed, or whether the records did not initially exist. If such records were destroyed, I noted the Town must demonstrate whether it followed proper records retention protocol. In its May 31st response the Town indicated "[t]his is confirmation that there are no records in existence that show any permits were pulled for work perfonned at 86 Central A venue from 2013 to present by either the Town of Salisbury or any third parties." In a May 31st email Attorney Guerriero wrote to you and noted, in part, "[o ]ur inquiry included not just permits for 86 Central A venue but for all of Central Ave in that general location. Please advise as this would be germane to our case." Having not received a response to this May 31st email, Attorney Guerriero appealed to this office. Subsequent to the opening of this appeal the Town provided Attorney Guerriero a supplemental response on August 1, 2019. In this response you indicate " [t ]his is a confirmation that there are no records in existence that show any permits, work orders or other documents for any type of repair work on Central A venue from 2013 to present by either the Town of Salisbury or any third parties." Whereas the Town's August 1st supplemental response provides additional information about the existence of responsive records, I will consider this appeal closed. Attorney Guerriero may appeal the substantive nature of the Town's response within 90 days. See 950 C.M.R. 32.08(1). It should be noted that the duty to comply with requests for records extends only 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), (b)(ii). Sincerely, ~ I T ~ Supervisor of Records cc: Connie Guerriero, Esq.