Tracey Hutton v. Methuen, City of - City Clerk (SPR 20202301)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2301 John J. Wilson, Esq. City Clerk City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Wilson: I have received the petition of Tracey Hutton appealing the response of the City of Methuen (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 4, 2020, Ms. Hutton requested “copies of all e-mail communication between Mayor Perry and other city councilors between and including 10/29/2020 and 11/3/2020.” The City provided a response on November 5, 2020. Unsatisfied with the response, Ms. Hutton appealed and this appeal, SPR20/2301, 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. The City’s November 5th Response In its November 5th response, the City indicates “[t]his record is being assigned to appropriate department. The department reviewer will review the request and create an effort 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

John J. Wilson, Esq. SPR20/2301 Page 2 December 8, 2020 estimate to create the response.” The City also states “[d]ue to the COVID-19 global pandemic, the Governor of the Commonwealth declared a State of Emergency on March 10, 2020 and Methuen Mayor Perry declared a State of Emergency on March 20, 2020. In keeping with the directives of the States of Emergency, Methuen City offices are closed to the public for the time being. It has not yet been determined when offices will reopen…[a]s such, the business day clock in Methuen legally stopped on March 20, 2020 and will not begin again until such time as the COVID-19 States of Emergency are lifted and City Hall is re-opened to the public. For this reason, all new and pending public records requests are on hold until that time.” Based on the City’s response, it is unclear if the City intends to permit inspection or furnish a copy of the requested records. G. L. c. 66, § 10(b). The City must clarify this matter. Order Accordingly, the City is ordered to provide Ms. Hutton with a response to the request, provided 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. Ms. Hutton may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Tracey Hutton