Allen Waller v. Marblehead, Town of (SPR 20202321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2020 SPR20/2321 Kyle Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Allen Waller appealing the response of the Town of Marblehead (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 12, 2019, Mr. Waller requested the following records: “1. All correspondence, memoranda, and e-mails related to the litigation and the countersuit by the Town 2. Names of all Town personnel engaged in managing the litigation 3. All work authorizations and invoices for the litigation[.]” Previous time petition and appeal The requested records were the subject of a previous time petition and subsequent appeal. See SPR19/0763 Determination of the Supervisor of Records (April 22, 2019) and SPR20/0800 Determination of the Supervisor of Records (June 1, 2020). In my June 1st determination, I found that the Town had not met its burden to withhold responsive records under Exemptions (c) and (d), as well as the attorney-client privilege. I also directed the Town to clarify whether additional records existed. Subsequently, the Town provided a response on September 1, 2020. Unsatisfied with the Town’s response, Mr. Waller petitioned this office and this appeal, SPR20/2321, 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 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

Kyle Wiley SPR20/2321 Page 2 December 10, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s September 1st response In its September 1st response, the Town provided additional information regarding its attorney-client privilege claim, as well as its arguments under Exemptions (c) and (d) of the Public Records Law. Subsequent to the opening of this appeal, this office received a supplemental response from the Town dated December 10, 2020. This response contains additional information that addresses the issues raised in Mr. Waller’s appeal. In light of the Town’s supplemental response, I will consider this administrative appeal closed. Mr. Waller may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen Waller