Mary Dormer v. Carver, Town of - Town Clerk (SPR 20210286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2021 SPR21/0286 Cara Dahill Town Clerk Town of Carver 108 Main Street Carver, MA 01773 Dear Ms. Dahill: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Ms. Dormer requested from the Town “[a]ll documentation relating to the Gateway Cannabis application for a host agreement, which should include any and all communication, letters, emails, social media posts and the like. Any and all documentation that sets forth a ‘good will’ agreement with Gateway Cannabis for a host agreement. All newspaper articles or any other information including plans and maps.” 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. 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. 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

Cara Dahill SPR21/0286 Page 2 February 17, 2021 Appeal On January 27, 2021, the Town provided a response and enclosed the responsive records regarding “any plans and maps concerning Capeway Cannabis.” Subsequently, Ms. Dormer petitioned for an appeal contending the response on January 27th “. . . does not include any correspondence, drafts of agreements of the like.” Ms. Dormer also stated “I received an incomplete response to this request for documents. Mr. LaFond has refused to provide me with all communication in his possession, stating to an employee that it is none of my business.” Based on the Town’s response, in conjunction with Ms. Dormer’s petition for appeal, it is unclear if the Town possesses any additional records responsive to Ms. Dormer’s request. See G. L. c. 66, § 10(a)(ii), (b)(ii), (iii). If the Town is withholding records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Conclusion Accordingly, the Town is ordered to provide Ms. Dormer 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, Rebecca S. Murray Supervisor of Records cc: Mary Dormer