Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20200777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 28, 2020 SPR20/0777 Mary Lou Folan Town Clerk Town of Norwood 566 Washington Street, Room 27 P. O. Box 40 Norwood, MA 02062 Dear Ms. Folan: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 30, 2019, Mr. Donovan requested the following: 1. Copies of all communication to or from FLN between the BOS and NAC from September 1, 2018 to December 30, 2019. 2. [c]opies of all agreements, including retention contracts or contract for services between the Town of Norwood, Board of Selectmen, Norwood Airport Commission and any agent, including attorney or agent representing the BOS and/or NAC with Anderson Kreiger LLP, including but not limited to [two identified attorneys], their agents or representatives. Mr. Donovan notes that “[t]he term communication shall include but not limited to: [w]ritten communication, email, records, notes, any form of communication including text or written communication. Personal or public means of communication including but not limited to email, notes, texts, letters, memos, etc. and any written agreement.” Previous appeals The requested records were the subject of previous appeals. See SPR20/0419 Determination of the Supervisor of Records (March 11, 2020) and SPR20/0533 Determination of the Supervisor of Records (March 27, 2020). In my March 27th determination, I directed the Town to clarify whether additional records exists. Accordingly, I ordered the Town to provide Mr. Donovan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided a response on March 27, 2020. 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

Mary Lou Folan SPR20/0777 Page 2 May 28, 2020 Unsatisfied with the Town’s response, Mr. Donovan petitioned this office and this appeal, SPR20/0777, 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. 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. Current appeal In its March 27th response, the Town enclosed a certain agreement. In his appeal petition, Mr. Donovan states the following: No records responsive to my request regarding communication between FLN and the BOS-NAC from September 1, 2018 to December 30, 2019 were provided. This is #1 of my original PRR on December 30, 2019. I asked also if they claimed any exemptions please note the date created, sender/receiver, subject and identifying information. No response was provided. The town has claimed records and communication by the town attorney, acting for the town, maintain the record so it is not a public record. The law does not support this claim. By saying the town attorney makes all communication they are shielding public records. I also pointed out the contract they sent between the town and MHTL had expired and I asked for the current contract. They did not respond or provide any current contract. They still use MHTL so some type of extension or contract exists. In light of the issues raised in Mr. Donovan’s appeal, I find the Town must clarify whether there are additional records that were withheld from disclosure. If so, the Town must

Mary Lou Folan SPR20/0777 Page 3 May 28, 2020 clarify if they are claiming any exemptions under the Public Records Law to withhold such records. 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. See G. L. c. 66, § 10(a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). If there are additional records, the Town must identify a reasonable timeframe it intends on producing the records. See G. L. c. 66, § 10(b)(vi). Order Accordingly, the Town is ordered to provide Mr. Donovan with a response to the request, provided in a manner consistent with this order, the March 27th 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: Christopher Donovan