Matthew Rocheleau v. Wellesley, Town of - Town Clerk (SPR 20200741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2020 SPR20/0741 K.C. Kato Town Clerk Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Wellesley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 7, 2020, Mr. Rocheleau requested, “[a]ny and all death certificates for deaths that occurred between March 1, 2020 and present (Note: Non- certified copies or abstract copies are fine…).” Unsatisfied with the Town’s response, Mr. Rocheleau appealed and SPR20/0741 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) (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). Town’s May 7, 2020 response In its May 7th response, the Town states, “… as the town clerk, [I] am bound by the statutory confines of G.L. c. 46, § 33. I do not possess abstracted records or databases that 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

K.C. Kato SPR20/0741 Page 2 May 20, 2020 contain the information Mr. Rocheleau is seeking, and the Public Records Law does not require me to create such a record or database.” The Town further asserted that “[w]hen Mr. Rocheleau pays the requisite fee per certified copy, he will receive the records … with the social security number redacted.” On May 8th, the Town sent a supplemental response in which the Town emphasized the fee for producing 62 records and the requirement for redacting the social security number. 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 ...”); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town’s response did not contain the specificity required in a denial of access to public records. Instead, the Town cited a statute without claiming any exemption(s) in the Public Records Law in support. Accordingly, I find that the Town has not established how it can withhold the records at issue in this appeal. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Order Accordingly, the Town is ordered to provide Mr. Rocheleau with a response to the request, provided 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: Matthew Rocheleau