Brian Keaney v. Dedham, Town of - Town Clerk (SPR 20202200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2200 Lauren F. Goldberg, Esq. KP Law Town of Dedham 101 Arch Street, 12th Floor Boston, MA 02110 Dear Attorney Goldberg: I have received the petition of Brian Keaney appealing the response of Town of Dedham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 9, 2020, Mr. Keaney requested “copies of any and all settlement agreements, separation agreements, exit agreements, and/or the like executed between the Town of Dedham and any of its employees for the period from January 1, 2019 to the present…” Previous appeal This request was the subject of a previous appeal. See SPR20/1751 Determination of the Supervisor of Records (October 5, 2020). In my October 5th determination I found the Town intended on providing Mr. Keaney with a response to his request. The Town was to provide Mr. Keaney with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. Claiming to not have received this response, Mr. Keaney petitioned this office, and SPR20/2200 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 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

Lauren F. Goldberg, Esq. SPR20/2200 Page 2 November 24, 2020 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 18th response, the Town indicates “[t]he Town has also identified one settlement agreement responsive to Request 8, but has notified the individual party to the agreement that it is the subject of a public records request and given that party until Friday, September 25, 2020, to seek a protective order of the agreement, if that is the party’s interest.” The Town further indicates “[w]e will follow up with you regarding the outstanding portion of your requests within two business days following the deadlines established for responses to our requests to the former Library Trustees and the Parks and Recreation Commission.” In his appeal, Mr. Keaney states “I have two objections. First, I am unaware of any exemption to the Public Records Law that allows for withholding a document so that a third party may obtain an injunction preventing its release. Secondly, two business days after the 25th goes beyond the ten business days the Town is given to respond under the Law.” Despite the Town’s response, the Town has not met its burden in responding to the request. Please be advised, under 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) (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…”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly, the Town is ordered to provide Mr. Keaney with a response to the request, 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: Brian Keaney