Susan T. Munford v. Kingston, Town of - Town Administrator (SPR 20200655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2020 SPR20/0655 Thomas Calter Town Administrator Town of Kingston 26 Evergreen Street Kingston, MA 02364 Dear Mr. Calter: I have received the petition of Susan Munford appealing the response of the Town of Kingston (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Munford requested “a copy of the complete Kingston Police Report and all narratives” for a certain incident. The Town responded to Ms. Munford on March 17, 2020, indicating that it is withholding responsive records pursuant to the attorney-client privilege, and the personnel and privacy clauses of Exemption (c) of the Public Records Law. In a separate response on March 20, 2020, the Town police department provided a response that included responsive records in redacted form. Unsatisfied with the Town’s responses, Ms. Munford petitioned this office and this appeal, SPR 20/0655, 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, § 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. 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 Calter SPR20/0655 Page 2 April 28, 2020 Current Appeal The Town’s March 20, 2020 response includes a check-off sheet indicating that it has redacted records pursuant to Exemption (b) of the Public Records Law. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. Burden of Specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(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….”); -se-e -al-so- -G-lo-b-e- N-e-w-s-p-ap-e-r Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In its response, the Town did not identify the responsive records that it withheld. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town redacted information from the responsive records without indicating what information it withheld. Therefore, the Town must identify what information it intends to withhold under Exemption (b). Further, although the Town’s response references Exemption (b), it is unclear how Exemption (b) applies to the withheld records. The Town must provide a response that specifically explains how the exemption applies to the records at issue. See G. L. c. 10(b)(iv).

Thomas Calter SPR20/0655 Page 3 April 28, 2020 Conclusion Accordingly, the Town is ordered to provide a response to Ms. Munford, consistent with this determination, the Public Records Law, and its regulations as soon as practicable. A copy of any such response must be sent 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: Susan Munford