Elizabeth Garthe v. Marblehead, Town of (SPR 20192268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2019 SPR19/2268 Kyle Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA O1 945 Dear Ms. Wiley: I have received the petition of Nicholas Mango and Elizabeth Garthe appealing the response of the Town of Marblehead (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Nicholas Mango and Elizabeth Garthe requested several categories of records from the Town including permits for the Glover Landing Condominium Trust. Claiming not to have received all responsive records from the Town, the requestors petitioned this office and this appeal 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, § 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 po1iion of the responsive record. Records in existence 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 ofrecords at the time of the request. See G. 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

Kyle Wiley SPR19/2268 Page 2 November 19, 2019 L. c. 66, § lO(a)(ii). In light of the issues raised in the requesters' appeal regarding the existence ofresponsive records.and the requirement to keep permit records, and despite the Town's responses, I find it is unclear why responsive permits and underlying permit materials have not been provided. Specifically, the Town must clarify whether additional responsive records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Mango and Ms. Gaiihe with a response to these requests in a manner consistent with this order, the Public Records Law, and its Regulations 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicholas Mango & Elizabeth Garthe