Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20202122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2020 SPR20/2122 Susan G. Hazen Town Clerk/Records Access Officer Town of Rowley 141 Main Street Rowley, MA 01969 Dear Ms. Hazen: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2020, Mr. Toomey requested “…any and all information relating to records from Town of Rowley conservation commission department or Rowley Community Media on any video or tape recordings of the first 37 minutes of the March 31, 2020, conservation commission meeting.” The Town responded on October 26, 2020 by providing the video recording. Claiming portions of the video recording were not provided, Mr. Toomey petitioned this office, and SPR20/2122 was opened as a result. Subsequent to the opening of this appeal, the Town provided a response to this office and Mr. Toomey on November 9, 2020. Mr. Toomey filed a response to the Town’s response on November 12, 2020. 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

Susan G. Hazen SPR20/2122 Page 2 November 16, 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). The Town’s November 9th response In its November 9th response, the Town states “[i]f Mr. Toomey's comments were ‘deleted’ from the recording of the meeting, no one in Town government knows anything about it. Neither the Conservation Commission nor Rowley Community Media ever has, or ever would, intentionally delete any part of such a recording, as they both understand such recordings to constitute public records…[i]t may well have been that Rowley Community Media had difficulties at the beginning of the meeting and therefore failed to record his initial interruption, as this was the first time the Commission had conducted its meeting under COVID-19 conditions and the technology and protocols were new for everyone. It may also be that Rowley Community Media stopped the recording immediately after adjournment, which would not be inappropriate but which may have prevented the recording of some or all of Mr. Toomey's second intrusive exclamation. If either deletion occurred, it was not intentional, and my clients do not know anything about it.” In his November 12th response, Mr. Toomey claims “I heard the missing part (me speaking 1st 10 minutes) when first posted or available on the RCM site. Other people heard to and contacted me too. Then the next day (I believe on the 2nd April), the 1st 10 minutes were deleted.” Records in existence 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). In light of the issues raised in Mr. Toomey’s appeal regarding the existence of responsive records, and despite the Town’s response, I find it is unclear whether responsive records existed. The Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If such records were destroyed, the Town must demonstrate whether proper records retention protocol were followed. Conclusion Accordingly, the Town is ordered to provide Mr. Toomey with a response to the request 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.

Susan G. Hazen SPR20/2122 Page 3 November 16, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey Thomas A. Mullen, Esq.