Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20200533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 27, 2020 SPR20/0533 Mary Lou Folan Town Clerk Town of Norwood 566 Washington Street, Room 27 P. O. Box 40 Norwood, MA 02062 Dear Ms. Folan: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 30, 2019, Mr. Donovan requested the following: 1. Copies of all communication to or from FLN between the BOS and NAC from September 1, 2018 to December 30, 2019. 2. [c]opies of all agreements, including retention contracts or contract for services between the Town of Norwood, Board of Selectmen, Norwood Airport Commission and any agent, including attorney or agent representing the BOS and/or NAC with Anderson Kreiger LLP, including but not limited to [two identified attorneys], their agents or representatives. Mr. Donovan notes that “[t]he term communication shall include but not limited to: [w]ritten communication, email, records, notes, any form of communication including text or written communication. Personal or public means of communication including but not limited to email, notes, texts, letters, memos, etc. and any written agreement.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/0419 Determination of the Supervisor of Records (March 11, 2020). I closed SPR20/0419 after I learned that the Town had provided Mr. Donovan with a response on March 10, 2020. Unsatisfied with the Town’s response, Mr. Donovan petitioned this office and this appeal, SPR20/0533, was opened as a result. While this appeal was pending, this office was notified that the Town provided a supplemental response on March 18, 2020, which included records 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

Mary Lou Folan SPR20/0533 Page 2 March 27, 2020 responsive to request 2. 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, § 10A(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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s March 10th response In its March 10, 2020 response, the Town claims that it provided all responsive records which the Town possessed at the time of the request. Request 1 With respect to request 1, the Town claims that “[a]ll responsive documents were provided on February 27, 2020. No documents were withheld.” In his appeal petition, Mr. Donovan states: The town was trying to route communication through their attorney to shield the records from the public records law. I have evidence of a Joint Defense Agreement between the Town of Norwood, their attorney and a private company and/or their attorneys or representatives. I again asked Mrs. Folan on March 10, 2020 to clarify her partial response. If, as requested under the public records law, the responsive documents [were] withheld because they were routed through the town attorneys(s) this is not in accordance with the prior orders from the Secretary. . . . Communication has been withheld between the Towns attorneys acting as agents for the town of Norwood and Flight Level Norwood, LLC, their attorneys or agents acting to represent FLN in communication with the town of Norwood.

Mary Lou Folan SPR20/0533 Page 3 March 27, 2020 In light of the issues raised in Mr. Donovan’s appeal, I find the Town must clarify whether there are additional records that were withheld from disclosure. If so, the Town must clarify if they are claiming any exemptions under the Public Records Law to withhold such records. 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Request 2 Mr. Donovan further states “[t]he town has also not provided the responsive documents under my request #2.” In its March 10th response, the Town states that it “. . . unintentionally omitted these documents from the response. [The Town is] currently seeking them from the General Manager/Board of Selectman. As soon as they are available, [the Town] will provide them to [Mr. Donovan] in a second supplementary response.” In the Town’s March 18, 2020 supplemental response, it indicates “[a]ttached are 3 Agreements relevant to Question #2 in your Public Records request of December 30, 2019 . . .” In response, Mr. Donovan also states “[t]he attached agreement for services between Murphy Hesse Toomey and Lehane expired on June 30, 2019. I believe MHTL still represents the town of Norwood so there should be a current agreement. Could you please send me the current agreement.” Based on the Town’s March 18th response, in conjunction with Mr. Donovan’s claim, it is unclear whether the Town has provided all records in its possession responsive to this request, or it is still in the process of compiling responsive records for production. As such, I find the Town must clarify whether additional records exist that are responsive to this request, including, emails, notes, letters, text messages and/or memos. If so, the Town must identify a reasonable timeframe it intends on producing the records. See G. L. c. 66, § 10(b)(vi). 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Town is ordered to provide Mr. Donovan with a response to the request, provided in a manner consistent with this order, the Public Records Law and 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.

Mary Lou Folan SPR20/0533 Page 4 March 27, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Donovan