Elizabeth Garthe v. Marblehead, Town of (SPR 20200356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 9, 2020 SPR20/0356 Kyle Wiley Records Access Officer Town of Marblehead Abbott Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of 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, on February 24, 2020, Ms. Gaiihe requested "permission to appeal the Town's October 30, 2019 response ... regarding the time to locate and compile the materials as well as the presumption that the Town can 'redact' non-confidential records and/or charge extra amounts for redaction of materials related to Public Health and Safety." Previous appeal · This request was the subject of several previous appeals. See SPRl 9/0208 Determination of the Supervisor of Records (February 6, 2019); SPR19/I412 Determination of the Supervisor of Records (July 17, 2019); SPRl 9/2198 Determination of the Supervisor of Records (October 31, 2019); SPR19/2275, SPR19/2276 Determination of the Supervisor of Records (November 13, 2019); SPRI9/2268 Determination of the Supervisor of Records (November 19, 2019); a11d SPRI9/2307 Determination of the Supervisor of Records (November 27, 2019). Unsatisfied with the Town's responses, Ms. Garthe petitioned this office and this appeal, SPR20/0356, was opened as a result. 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). 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 SPR20/0356 Page 2 March 9, 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, § 1O (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 pmiion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records Current Petition In her petition dated February 24, 2020, Ms. Garthe petitioned this office for "permission to appeal the Town's October 30, 2019 response." Further, it appears that Ms. Garthe is also requesting to appeal "Deficient Area 2 & 3 requested permit related materials (as enumerated in ... [the] 2nd Appeal letter ... " The 2nd appeal is dated November 8, 2019. It appears Ms. Garthe is not appealing the November 2Jf11 Town response in which the Town offered Ms. Garthe an opportunity to review the documents requested over a period of three dates beginning December 16, 2019 due to the volume of the request. The Town asserted that once the documents are selected, the Town would scan and place the documents on a thumb drive and provide an estimate. The Public Records Access Regulations, which govern the procedural aspects of all · appeals, require that an appeal to this office be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e). The petition is requesting the appeal of the Town's October 30, 2019 and November 8, 2019 responses, both of which exceeds the ninety day limit. Ms. Garthe may make a new request to the Town for the same information. The Town would then have ten business days in which to respond to the new request. G. L. c. 66, § IO(a) (b). If the Town denies the request or fails to respond within ten business days, the requestor may appeal to this office within the above timeframe. At that time this office will review the matter. Accordingly, I will consider this matter closed. Sincerely. l?JeuA~ Rebecca S. Murray Supervisor of Records cc: Elizabeth Gmihe