Brian Gosse v. Georgetown Town Administrator (SPR 20200913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 23, 2020 SPR20/0913 Kerri A. McManus Town Clerk/Records Access Officer Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Brian Gosse appealing the response of the Town of Georgetown (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 1, 2020, Mr. Gosse requested: 1. The petition to the Selectmen mentioned in Tom Howard’s report issued June 15, 2019; 2. The RFP and/or total cost of services for Tom Howard of Howard Consulting and Investigations 2019; 3. A list of gift funds and balances for 2018, 2019 and to date in 2020; and 4. Current Erie 4/Town of Georgetown Contract; and 5. The acknowledged “after-action report” regarding the 2018 Thurlow Street boat accident (supporting documentation can be provided if warranted). Prior appeal The responsive records were the subject of a prior appeal. See SPR20/0668 Determination of the Supervisor of Records (Supervisor) (May 1, 2020). By email on April 9, 2020, the Town provided Mr. Gosse with a fee estimate for $41.10; however, after the Supervisor’s May 1st determination, the Town not only explained the fee, but chose to waive the fee for the records provided. Mr. Gosse’s check for the fee was sent back to him. The Town provided Mr. Gosse with responsive records via email but on June 5, 2020, Mr. Gosse petitioned the Supervisor pertaining to records he was not provided, and as a result, the current appeal was opened. 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

Kerri McManus SPR20/0913 Page 2 June 23, 2020 In his June 5th petition, Mr. Gosse maintains that the requested records responsive to his Requests 1, 2, 3 and 4 exist and are in the possession of the Town, but to date have not been provided. 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). Current appeal At issue in the current appeal is Mr. Gosse’s contention that to date the Town did not provide certain of the requested information or records responsive to the request. Request Number 1: Mr. Gosse indicates in his April 1st request that nineteen members of the Town’s Fire Department sent a signed document to the Board of Selectmen (Board); however, the Town Clerk maintains that the files of the Board were reviewed again and no such letter or petition was found. Mr. Gosse continues to assert that the document must exist because it is mentioned in an investigation report from Tom Howard on June 15, 2019. I find that it is unclear whether the Town has conducted an exhaustive search for the requested signed document. As a result, I find the Town must clarify this issue. Request Number 2: Mr. Gosse asserts that while the Town provided him with the costs incurred by the Town for the services provided by Tom Howard of Howard Consulting to conduct an internal investigation, the Town did not provide him with either the Request for Proposal (RFP) or a contract for Mr. Howard’s services to the Town. It is unclear whether the Town conducted a diligent search for the RFP or contract. I find the Town must clarify this issue. Request Number 3: Mr. Gosse indicates he did not receive all the records from 2018, 2019 and the 2020 gift accounts and balances to the date of his request for “Camp Denison; COA; Fire Donations; GAA Turf Field; Georgetown Historical Commission; Healthy Parms Host; Highway; Hwy-Gardeners; Public Safety; Selectmen; Memorial gifts; Sawyer Fund (non-

Kerri McManus SPR20/0913 Page 3 June 23, 2020 expendable and interest); and the Peabody Fund.” Mr. Gosse states, “[t]he Town in its most recent reply, included the gift fund titles, but did not include the balances as requested.” I find it is unclear whether it is in possession, custody and control of the records Mr. Gosse requested and did not receive. The Town must clarify this issue. Request Number 4: Mr. Gosse confirmed he received the Erie 4/Georgetown contract dated June 30, 2019; however, it is his contention that the Board’s minutes from the January 13, 2020 meeting indicated that the Town extended the contract for 10 years. The Town informed Mr. Gosse that it is not in possession of any additional documentation reflecting the ten- year extension of the contract, and no additional records exist. In his June 5th petition to this office, Mr. Gosse contends, “[o]n April 13th there is an email exchange between Fred Mitchell, Matt McKay and Kerri McManus, where it is stated that a revised draft was sent to the [Board] on January 16th, and that there is an unsigned copy in the office.” Mr. Gosse explained to this office that the Town did not inform him that it is in possession of a more recent, unsigned copy of the contract between the Town and the Erie 4. The Town must specifically claim an exemption in the Public Records Law to withhold the unsigned contract. The Town is advised, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies in withholding a record or records. 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. The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Based on Mr. Gosse’s June 5th petition, I find that the Town must clarify whether it is in possession of further records requested in the records requested in Mr. Gosse’s requests 1-4. I also encourage the parties to continue to communicate in order to satisfy and produce the outstanding records requested by Mr. Gosse. Conclusion Accordingly, the Town is ordered to provide Mr. Grosse with a response to his requests 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: Brian Gosse