David Bixby v. Chatham, Town of (SPR 20192481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records December 31, 2019 SPR19/2481 Terence M. Whalen Town of Chatham 549 Main Street Chatham, MA 02633 Dear Mr. Whalen: I have received the petition of David Bixby appealing the response of the Town of Chatham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 10, 2019, Mr. Bixby requested a "copy of the latest Hangar B restaurant concession agreement previously referenced in a Federal Aviation Administration land use inspection report." Unsatisfied with the response provided by the Town on December 5, 2019, Mr. Bixby 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) (written response must "identify. any records, categories of records or p01iions 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 • (6 17) 727-2832• Fax: ( 617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Terence M. Whalen SPR19/2481 Page 2 December 31, 2019 Current Appeal In an email dated December 14, 2019, Mr. Bixby claims the rent amount and the annual rent increase in the concession agreement document provided are redacted. Mr. Bixby states he is seeking a "complete and unredacted copy of the document." In your December 5, 2019 email you explain, "the Town/Airport Commission is not in possession, custody or control of any public records responsive to your request regarding rent or lease payments." You provided an additional response December 30, 2019 in which you indicate, in part, "[t]he appeal references an earlier agreement being available in an unredacted form, however, in this most recent instance of approving the Hangar B Restaurant concession agreement, the contracted Airport Manager/Fixed Based Operator (FBO) provided the Town/A irport Commission with a redacted copy of the agreement. ... " You further note " ... the Town/A irport Commission did not make the subject redactions and therefore does not have any fmiher public records in its possession, custody or control at this time responsive to Appeal SPRl 9/2481." Public Records; Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607 (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a records custodian keeps original public records in a location other than the government building, they have a duty to make the public records available in a location convenient to the general public for inspection and copying. · Consequently, based on the Town's response it is unclear whether there is an agency relationship between the Town and contracted Airpmi Manager/Fixed Based Operator. As such, I find the Town must provide additional information regarding the relationship between it and the Airport Manager/Fixed Based Operator in order to determine whether it has met its burden under G. L. c. 66, § lO(a) (ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Further, it is unclear how an exemption applies to the redactions at issue. See G. L. c. 66, § lO(b) (iv).

Terence M. Whalen SPR19/2481 Page 3 December 31, 2019 Conclusion Accordingly, the Town is ordered provide Mr. Bixby with a response to the request in a manner consistent with this order, the Public Records Law, its Regulations within ten (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 re.sponse to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. David Bixby