John R. Heresy, Jr. v. Hingham, Town of - (SPR 20200074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111/sor ofR ecords January 27, 2020 SPR20/0074 Michelle Monsegur Assistant Town Administrator Hingham Town Hall 210 Central Street Hingham, MA 02043 Dear Ms. Monsegur: I have received the petition of John R. Heresy, Jr. appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 4, 2019, Mr. Heresy requested, "pay-outs plus date for Mr. Charles Christelo as consultant to the Town from 2014-12/4/2019." Tlte 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. Current Appeal In a letter to Mr. Heresy dated December 23, 2019 you expressed, "[t]he Town does not have any records responsive to your request regarding Mr. Christelo." Unsatisfied with this response, Mr. Heresy petitioned thi.s office and as a result SPR20/0074 was opened. 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 McGrath SPR20/0074 Page 2 January 27, 2020 In an appeal to this Office, Mr. Heresy writes, "this is not the first time this has happened. They gave me no reason in writing to why this happened." Please be advised, 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, § 1O (a)(ii). I find it is unclear why responsive records have not been provided. Specifically, the Town must explain whether the requested records existed and where destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please note, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the Records Retention Manual, available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Town must provide Mr. Heresy with a response 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, ~ u r ~ Supervisor of Records cc: John R. Heresy, Jr.