Susan T. Munford v. Kingston, Town of - Town Administrator (SPR 20200656)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 24, 2020 SPR20/0656 Thomas J. Calter, III Town Administrator/Records Access Officer Town of Kingston 26 Evergreen Street Kingston, MA 02364 Dear Mr. Calter: I have received the petition of Susan T. 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: “copies of all grievances and unfair labor practice complaints filed with the Massachusetts Labor Board against the Town of Kingston for the period of January 1, 2019 through September 1, 2019.” In a March 15, 2020 response, the Town informed Ms. Munford, “…the Town has determined that it does not possess any responsive grievances and/or unfair labor practice complaints filed with the Massachusetts Labor Board. To the Town’s knowledge there is no such state agency called the Massachusetts Labor Board.” The Town referred Ms. Munford to the Massachusetts Department of Labor Relations, and informed her that filings by employees and employers may be found on the Department of Labor Relations website at: https://mass.gov/orgs/department-of-labor-relations. As a result of the Town’s response, Ms. Munford petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Munford indicates that she gave the Records Access Officer (RAO) a reasonable description of the desired information, and that the Town Administrator would be the actual individual in the Town who would receive the original grievances and unfair labor practices for the Town. 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 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 J. Calter, III SPR20/0656 Page 2 April 24, 2020 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) (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). Identifying records in the Town’s possession While the Town referred Ms. Munford to the Department of Labor Relations for any grievances and/or unfair labor practices filed by employers and/or employees, Ms. Munford contends that the original filings of grievances and unfair labor practices complaints would be filed with the Town Administrator of the Town of Kingston. It is unclear whether the Town is in possession of any grievances and/or unfair labor practices complaints filed directly with the Town. Under the Public Records Law a records custodian must identify the records responsive to a request and that it has in its possession, custody and control. See G. L. c. 66, § 10(a)(ii) (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). I find that the Town must clarify whether it is in possession of any responsive grievances and unfair labor practices complaints filed with the Town from January 1, 2019 through September 1, 2019. Conclusion Accordingly, the Town is ordered to provide Ms. Munford with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Susan T. Munford