Christopher Furlong v. Dalton, Town of (SPR 20201580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 18, 2020 SPR20/1580 Judy Wagner Town of Dalton Board of Selectmen 462 Main Street Dalton, MA 01226 Dear Ms. Wagner: I have received the petition of Christopher Furlong appealing the response of the Town of Dalton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Furlong requested certain executive session minutes and copies of identified payments relating to the Police Department (Department). Prior appeal The executive session minutes were the subject of a prior appeal. See SPR20/1277 Determination of the Supervisor of Records (August 12, 2020). Claiming to not have received a response to his request, Mr. Furlong petitioned the Supervisor and the prior appeal was opened. In my August 12th determination, I ordered the Town to provide Mr. Furlong with a response to the request. 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 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

Judy Wagner SPR20/1580 Page 2 September 18, 2020 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). No records In its August 31st response, the Town indicates that it has no records responsive to Mr. Furlong’s request for records relating to identified payments. Under the Public Records Law, the Town is not required to create any record in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, based on Mr. Furlong’s appeal petition and the Town’s response, it is unclear whether responsive payment records existed and were destroyed or whether the requested records were never created. Open Meeting Law The Town withheld some responsive executive session minutes and provided Mr. Furlong with redacted executive session meeting minutes of June 11, 2020 and June 18, 2020; under an Open Meeting Law (OML) exception. Given that the authority over the OML rests with the Division of Open Government of the Office of the Attorney General (AGO) and not the Supervisor, I advise the parties to confer with the AGO regarding the status of the executive session meeting minutes Conclusion Accordingly, the Town is ordered to provide Mr. Furlong with a response pertaining to the existence of the requested payment records, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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 Furlong