David Bixby v. Chatham, Town of (SPR 20200136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2020 SPR20/0136 Terence M. Whalen Airport Commission Staff Liaison 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, § 1O A; 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." The Town provided a redacted version of the requested record that is publicly available online in the documents of the Airport Commission's December 5, 2016 meeting. Mr. Bixby petitioned this office seeking the unredacted version of the agreement. Prior Appeal The requested records have been the subject of a prior appeal. See SPR 19/2481 Determination of the Supervisor of Records (December 31, 2019). In my December 31st determination, I ordered the Town to clarify the relationship between the Town and its Airport Commission, and the Airport Manager. The Town provided a supplemental response on January 15, 2020, providing further information regarding this relationship. 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, § 1O A( 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). 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

Terence M. Whalen .SPR20/0136 Page 2 February 7, 2020 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 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). 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 .. Current Appeal In its January 15th response, the Town provided further clarification regarding its relationship to the Airport Manager. The Town explained that the Airport Management Services Agreement "establishes the CCFC as the Fixed Based Operator (FBO) who also provides the Town/Airport Commission with an Airport Manager and other management services as opposed to the Chatham Airp01i being Town/A irp01i Commission run by Town/Commission employees. Via the AMSA, the Town/A irport Commission essentially outsources the daily logistical and operational demands of running the airport to a private entity. The Town/Airport Commission does not fund or employ any personnel for onsite management, maintenance or operation of the airport." The Town additionally acknowledges that it exercises control over the Airport Manager's actions with respect to the Manager's operation of the airport, noting that regarding the contract at issue, the "Airport Commission/Town Manager needs to approve such private agreements" between the Manager and a private entity. Lastly, the Town argues that no agency relationship exists relative to the records at issue here because "it does not appear the provision of a restaurant is a 'public duty"' as used in Fifty one Hispanic Residents of Chelsea. The Town's characterization of the public duty at issue here is too narrow. Where the Airport Manager has entered into this agreement as part of its duty to manage and operate the airport, subject to the authority granted to it by the Town in the Airport

Terence M. Whalen SPR20/0136 Page 3 February 7, 2020 Management Services Agreement, it is fulfilling the Town's public duty to operate the airport. See M.G.L. c. 90, § 5 lE (requiring city or town to establish an airport commission, "which shall have the custody, care and management of the municipal airport of said city or town"). Whereas the Town has contracted with a private entity to delegate the management and operation of the Town's airpmi, I find that there exists an agency relationship between the Town and CCFC/the Airport Manager. Accordingly, the Town has a duty to make available the records of the Airport Manager related to its operation of the airpmi. 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 response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. David Bixby