Richard D. Bradley v. Falmouth, Town of - Town Clerk (SPR 20201803)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2020 SPR20/1803 Julian M. Suso Town Manager Town of Falmouth 59 Town Hall Square Falmouth, MA 02540 Dear Mr. Suso: I have received the petition of Richard Bradley appealing the response of the Town of Falmouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bradley requested “the Town Managers Evaluation.” The Town responded on September 24, 2020, providing Select Board minutes. Unsatisfied with the Town’s response, Mr. Bradley petitioned this office and this appeal, SPR20/1803, 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. Current Appeal In its September 24th response, the Town provided “a copy of the Select Board minutes 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

Julian M. Suso SPR20/1803 Page 2 October 8, 2020 from March 9 which includes the summary comments provided on the Town Manager Evaluation by SB Chair Megan English-Braga.” In his appeal petition, Mr. Bradley indicates that he has not received the evaluation and that he “want[s] to see the evaluation and who scored what on his performance.” He further explains that he is “looking for the evaluation like the 2018 which shows the areas evaluated.” Based on Mr. Bradley’s petition and the Town’s response, it is unclear whether the Town possesses additional responsive records. The Office must clarify this matter. 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, § l0(a)(ii). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. See G. L. c. 66, § 10(b). Conclusion Accordingly, the Office is ordered to provide a response to Mr. Bradley, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Richard Bradley