Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20200684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 5, 2020 SPR20/0684 Susan G. Hazen Town Clerk/Records Access Officer Town of Rowley 141 Main Street Rowley, MA 01969 Dear Ms. Hazen: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Toomey requested: "[a]ny and all documents or materials relating to the investigation of a zoning enforcement violation by [an identified employee in the Town]. This request relates to [the identified employee's] response to a [r]equest for Zoning Enforcement set to.the [identified employee] on March 5, 2020. [The identified employee's] response is hereto attached issued on 3/16/2020 for 366 Central Street. ... provide all communication of any form; such as, personal and official emails, photographs, or interdepartmental communication relating to the Building Inspector's investigation." By email on April 21, 2020, the Town provided Mr. Toomey with records responsive to this request. As a result of the production of records, Mr. Toomey petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 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

Susan G. Hazen SPR20/0684 Page 2 May 5, 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). The Town's April 21, 2020 email response; April 23, 2020 reason for appeal In its April 21st email response, the Town indicates to Mr. Toomey it was "forwarding the Conservation Commission's [r]esponse to your Public Records [r]equest@2020-19, attached I believe this response complies with G. L. c. 66, § 10 and now consider this request to be complete." In his April 23, 2020 petition, Mr. Toomey indicates that the Town redacted emails and that the Town has not provided all the responsive emails. Burden ofs pecificity; further responsive emails The Town withheld content in the provided emails; however, it is not apparent that any exemptions in the Public Records Law were specifically claimed to support the withholding of the content in these emails. In addition, Mr. Toomey indicates that he did not receive all the email communications. Mr. Toomey contends in his April 23rd petition, "[t]here are more emails where they came from." Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive content in the emails is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must provide a response that cites an exemption with specificity to withhold the content in the emails already produced. The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). In addition, in his April 23rd petition, Mr. Toomey indicates that it is his belief the Town did not provide all the responsive emails. The Town must use its knowledge of the records to facilitate the provision of any additional responsive records. Under the Public Records Law, 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 at the time of the request. See G. L. c. 66, § lO(a)(ii). I encourage the parties to continue to communicate to facilitate the provision of any additional responsive records, and to resolve any outstanding issues pertaining to Mr. Toomey's request for records.

Susan G. Hazen SPR20/0684 Page 3 May 5, 2020 Conclusion Accordingly,. the Town is ordered to provide Mr. Toomey with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is 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: Timothy Toomey