Robert Dane v. Heath, Town of - Office of the Town Clerk (SPR 20210150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0150 Alice Wozniak Assistant Assessor Town of Heath 1 East Main Street Heath, MA 01346 Dear Alice Wozniak: I have received the petition of Robert Dane appealing the response of the Town of Heath (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 21, 2020, Mr. Dane requested “all emails, letters, or other correspondence sent to, from, and/or between members of the Heath Select Board, and any other third party, concerning, relating to, any deliberation, discussion, concerning the proposed relocation of town administrative offices from Sawyer Hall to 18 Jacobs Road made between September 1, 2020 and December 21, 2020 …” Unsatisfied with the Town’s response, Mr. Dane petitioned this office and SPR21/0150 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) (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 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). 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

Alice Wozniak SPR21/0150 Page 2 February 5, 2021 The Town’s Responses On January 3rd the Town responded and produced the requested records. The Town produced additional records on January 7th indicating, “[t]he documents include correspondence that was received by the Town’s Coordinator’s office and of the Select Board members. This is the final set of documents and fulfills your request.” Current Appeal In Mr. Dane’s January 22nd appeal, he contends that the Town’s initial response did not include all emails from the Town’s Select Board members. Mr. Dane also asserts that there must be emails between the Select Board members about monthly Zoom meetings, because the Town Coordinator has sent similar emails to Select Board members before other meetings in the past. Based on the Town’s responses, it is unclear if the Town possesses additional records responsive to the above request. Specifically, the Town must clarify whether it possesses records, documents or additional emails as requested. 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). Conclusion Accordingly, the Town is ordered to provide Mr. Dane with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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, -IJA •.• _ ~ ~·.• 0 - ~ Rebecca S. Murray Supervisor of Records cc: Joseph R. Dane