Aldo A. Cipriano v. Grafton, Town of (SPR 20192318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 2, 2019 SPR19/2318 Ginny S. Kremer, Esq. Blatman, Bobrowski, & Haverty, LLC 9 Damonmill Square, Suite 4A4 Concord, MA 01742 Dear Attorney Kremer: I have received the petition of Aldo Cipriano, Esq. appealing the response of the Town of. Grafton (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.K 32.08(1). Specifically, Attorney Cipriano requested 10 categories of records related to a drainage issue on an identified road. The Town provided ce1iain records; however, Attorney Cipriano appealed, indicating that the Town has yet to produce other requested records. 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. Appeal I understand the Town provided multiple responses to Attorney Cipriano, including an October 18, 2019 response in which it provided certain responsive records. In the October 18111 response you indicate "[ e ]nclosed please find public records responsive to your request. The Select Board's executive session minutes, to the extent they are public records, will be provided under separate cover." 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

Ginny S. Kremer, Esq. SPR19/2318 Page 2 December 2, 2019 In the appeal petition, Attorney Cipriano indicates, in part, "[o ]n October 18, 2019, on the original request for records, certain documents were furnished, whereby several categories were completely disregarded but most significantly, none relative to Executive Session minutes requested in Category Three of our public records request." Attorney Cipriano further notes "[a]s of the date of this appeal, November 15, 2019, no such records have been furnished either with or without redaction or any further explanations given nor any of the residual documents pertaining to several categories of our request." It appears a portion of Attorney Cipriano' s appeal is related to the release of executive session minutes which may raise issues under the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, the parties may wish to contact the AGO about this matter. See G. L. c. 30A, § 23. Subsequent to the opening of this appeal, you informed this office that the Town intends to provide a supplemental response regarding the issues raised in this appeal. This response must clarify whether the Town possesses additional responsive records that have yet to be provided. 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. L. c. 66, § lO(a)(ii); G. L. c. 66, § lO(b)(vi) (a written response must "identify a reasonable timeframe in which the agency or municipality shall produce the public records sought. ... "). If the Town is withholding records, the response must be made in a manner consistent with G. L. c. 66, § 1O (b ). See G. L. c. 66, § lO(b )(iv) ( a 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 ... "). Further, the Town must clarify whether it is withholding records under the Open Meeting Law or any other exemption to the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Attorney Cipriano with a response to the request, provided 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: Aldo Cipriano, Esq.