Rich Saltzberg v. Chilmark, Town of - Town Administrator (SPR 20200700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0700 Timothy Carroll Town Administrator Town of Chilmark 400 Middle Road P.O. Box 119 Chilmark, MA 02535 Dear Mr. Carroll: I have received the petition of Rich Saltzberg, of the Martha’s Vineyard Times, appealing the response of the Town of Chilmark (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Saltzberg requested: “any and all plans; reports; letters; email communications, or other records concerning the septic system at U.S. Coast Guard Station Menemsha generated between January 1, 1995 and March 31, 2020. The newspaper similarly requests the aforementioned records for any [T]own installation that may have occupied the same piece of real estate as the station, and may have used the same system.” By email on April 17, 2020, Mr. Saltzberg was informed by Town Clerk Jennifer Christy that she did not have the responsive records in her office. Ms. Christy provided the request to the Town’s Board of Health and to the office of the Town Administrator. On April 17th you emailed Mr. Saltzberg, asserting, “I repeat my offer to share what is in my head for that 25 year period. I will be happy to search my files once the [T]own [H]all reopens. That is currently [M]ay 5.” As a result of the Town’s responses, Mr. Saltzberg petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his April 29, 2020 petition, Mr. Saltzberg contends the Town was not responsive to his request by not providing any of the requested records. 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). 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

Timothy Carroll SPR20/0700 Page 2 May 13, 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, § 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). 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. While a records access officer must respond to a request for public records within 10 business days, a business day does not include a weekday where a custodian’s office is unexpectedly closed. G. L. c. 66, § 10(a); 950 C.M.R. 32.02. In an April 12, 2020 email to this office, you explained, “[t]he Chilmark Town Hall has been closed since March 17th. The [T]own declared a state of emergency on March 17th….We told [Mr. Saltzberg] that we would do a search of our records for the 20+ years he asked for once the [T]own [H]all reopened.” It is also my understanding that in the meantime, you offered to assist Mr. Saltzberg by discussing responsive information on the septic system over the telephone. Furthermore, you explained that the Board of Health (Board) has one part-time employee, whom at this time is working remotely for the foreseeable future. It is my understanding that it is the Town’s intention to begin a search and report to Mr. Saltzberg on a rolling basis as records are found that are responsive to the request. Conclusion Accordingly, the Town is to provide a response to Mr. Saltzberg in compliance with the Public Records Law and its Regulations as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg, Martha’s Vineyard Times