Anthony T. Panebianco v. Halifax, Town of - Planning Board (SPR 20200853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2020 SPR20/0853 Gordon R. Andrews, Chair Town of Halifax Planning Board 499 Plymouth Street Halifax, MA 02338 Dear Chairman Andrews: I have received the petition of Anthony T. Panebianco, Esq. of Drohan, Tocchio & Morgan, P.C. appealing the response of the Town of Halifax’s (Town) Planning Board (Board) to a request for public records on behalf of his client, Amanda Monti. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, in a May 11, 2020 email Ms. Monti requested: “[t]he letter from the Board of Selectmen to Planning Board (Board) regarding the [Board’s] request to meet with the Board of Selectmen. Who proposed the agenda for Map 95 lot(s) 9 & 10 &11A [S]treet for May 7, 2020, how was the proposed agenda received, along with emails, and specifically from who; and [a]ny communications from the Board to the Board of Selectmen.” In a 2:45 PM email on May 11th, Ms. Monti informed the Board: “I want to update the public document request…any communications between the Board members among themselves and/or to Jo-Anne used to create the agenda for May 7, 2020.” The Town’s May 26, 2020 response In its May 26th email to Ms. Monti, Town Administrator Charlie Seelig informed her, “[y]our request was included on the agenda for the [Board’s] meeting on May 21. While the correspondence was read during the meeting, the [Board] did not engage in substantial conversation concerning the request nor took any action concerning the request…” As a result of the Town’s response, Attorney Panebianco petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Panebianco indicates 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

Gordon R. Andrews, Chair SPR20/0853 Page 2 June 9, 2020 that Jo-Anne Snow, the records access officer (RAO) for the Board, did not respond nor provide any responsive records after her initial May 14, 2020 communication. 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). 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. In his May 28th petition to the Supervisor, Attorney Panebianco indicated that the Board did not respond in compliance with G. L. c. 66, § 10(b); therefore, the Board cannot assess any fees for the responsive records. An RAO may not charge a fee unless the RAO provides a written response in compliance with G. L. c. 66, § 10(b) within ten business days following receipt of the request. G. L. c. 66, § 10(e). The Board may not be permitted to charge fees associated with the request if the Board did not provide a response to this request in compliance with this provision of the law. See G. L. c. 66, § 10(e); see also 950 C.M.R. 32.06(2)(c). Burden of specificity; segregable portions 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); see also Globe Newspaper ----------------- Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear whether the Board possesses records responsive to this request. The Board must clarify whether it possesses responsive records. If the Board is withholding records, it must claim an exemption to the Public Records Law with specificity. See G. L. c. 66, § 10(b)(iv).

Gordon R. Andrews, Chair SPR20/0853 Page 3 June 9, 2020 Conclusion Accordingly, the Board is ordered to provide Attorney Panebianco 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: Anthony T. Panebianco, Esq., Drohan Tocchio & Morgan, P.C. Charlie Seelig, Town Administator