Ryan Kath v. Hingham, Town of - Town Administrator (SPR 20192171)

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

Rebecca S. Murray Supervisor of Records

November 5, 2019 SPR19/2171 Thomas Mayo Hingham Town Administrator 210 Central Street Hingham, MA 02043

Dear Thomas Mayo:

I have received the petition of Ryan Kath appealing the response of the City of Hingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically on September 30, 2019 Mr. Kath requested “a copy of the ‘agreement’ signed between the Town and former Town Engineer Roger Fernandes.” In an email dated October 8, 2019 you state, “I am discussing the status of this documents and will have an answer for you in a few days.”

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, § 1OA(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); 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 October 22, 2019 Mr. Kath writes, “I’m writing to appeal a public records request I submitted to the Town of Hingham on September 30. I requested a copy of the ‘agreement’ signed between the Town and former Town Engineer Roger Fernandes. On October 8, Town Administrator Tom Mayo responded that he was discussing the status of the

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

Thomas Mayo SPR19/1379 Page 2 November 5, 2019

document and ‘would have an answer in a few days’ (see email chain below) I have not received any further updates about the status of the document.”

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).

__ As of the date of this letter, it is unclear if the Town possesses records responsive to Mr. Kath’s request.

Order .

Accordingly, the Town is ordered to provide Mr. Kath with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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, »

Rolwcaa Mumay

Rebecca S. Murray Supervisor of Records

ce: Ryan Kath