Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20192266)

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

Rebecca S. Murray Supervisor of Records

November 21, 2019 SPR19/2266

Susan G, Hazen

Town Clerk and Records Access Officer

Town of Rowley

141 Main Street

Rowley, MA 01969

Dear Ms. Hazen:

I have received the petition of Timothy A. Toomey, on behalf of Rowley Citizens for Governmental Transparency (RCGT), appealing the nonresponse of the Town of Rowley (Town) . to a request for public records. G. L. c.66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 11, 2019 Mr. Toomey requested “any and all information relating to the Town of Rowley Building Department’s response dated 9/23/2019 ... to inquiries relating to new structure located at 366 Central Street starting September 9 to the present day for or by [certain applicants] inclusive of correspondences and research, investigations data/information.”

Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days of receipt of the request. G.L. - c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial, G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of a response.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(d)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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) (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 ..."); 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).

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

Susan G. Hazen _ SPR19/2266 Page 2 November 21, 2019

Based upon a review of the file, it is unclear if the Town possesses the records requested by Mr. Toomey. See G. L. c. 66, § 10(a)(ii), (b)(ii), (ii). The Town must determine if the records exist and respond to Mr, Toomey accordingly. Please note, 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), (b) (ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b) (iii).

Conclusion

Accordingly, the Town is ordered to review the requests made by Mr. Toomey and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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.

Lleeca

Rebecca S. Murray Kelrecce Mawr.

Supervisor of Records ce: Timothy A. Toomey