Ryan Kath v. Hull, Town of - Town Counsel (SPR 20191835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records September 23, 2019 SPR19/1835 Attorney James B. Lampke Hull Town Counsel 253 Atlantic Avenue Hull, MA 02045 Dear Attorney Lampke: I have received the petition of Ryan Kath of NBC 10 Boston appealing the response of the Town of Hull (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. . 32.08(1) Specifically on July 9, 2019, Mr. Kath requested all emails exchanged between two identified individuals and "all Town of Hull employees and CPC members from July 1, 2018 thru present." 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, § lO(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. Current Appeal In a letter to this office dated September 9, 2019, Mr. Kath states, "I am writing to appeal a public records request I submitted on Tuesday, July 9 to the Town of Hull. The following week I heard from town counsel Jim Lampke, asking me to narrow down the scope of the request (see chain of communication below). I responded and came up with a list of town departments to conduct the email search. I later heard from Mr. Lampke that the email search had been conducted, but the emails needed to be reviewed for any potential redactions. I have not received 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

SPR19/1835 Ryan.Kath Page 2 September 23, 2019 any recent update on the status of my request. It has been two months since my original request, thus the reason for my appeal." On September 16, 2019, the Town provided Mr. Kath records responsive to his request. In response Mr. Kath expressed, "[t]he stack of emails begin on April 30, 2019 and go thu July 2019. My original request this summer asked for emails from July 2018 thru presets ... [p]lease let me know if the Town did not properly search for responsive records and needs to conduct a new search. Or if some records were inadvertently not included." In a follow up email dated September 18, 2019 you state, "I do not have any answer to yom question, but will find out if emails responsive were not included will have them sent." Duty to' Create Records Please be advised, 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 the request. See G. L. c. 66, § 10( a)(ii). Although the Town provided Mr. Kath records responsive to his request, it is unclear if the Town possesses any other records responsive to his request. Conclusion Accordingly, the Town is ordered to provide a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Further, this office encourages Mr. Kath and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Sincerely, ~~ Supervisor of Records cc: Ryan Kath