Mary Dormer v. Carver, Town of - Town Clerk (SPR 20210502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2021 SPR21/0502 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). On January 23, 2021, Ms. Dormer requested “[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.” Previous Appeal The request was the subject of a previous appeal. See SPR21/0286 Determination of the Supervisor of Records (February 17, 2021). In my February 17th determination, I found it was unclear if the Town possessed any additional records responsive to Ms. Dormer’s request. The Town was ordered to provide a response in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided a response on February 18, 2021, which included responsive records. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office, and SPR21/502 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). 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 SPR21/0502 Page 2 March 12, 2021 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. Current Appeal In its February 18th response, the Town indicates it provided “the application package for the site plan and special permit with supporting material (in a binder), copies of the site plans and architectural plans and other related documents.” The Town further indicates it “has provided all communication contained within this office... [t]he town is not the keeper of social media records, newspapers, etc.” In her appeal, Ms. Dormer contends, “I know for a fact that there was communication between [an identified individual] ans [sic] the attorney for Capeway Cannabis. As my husband…was contacted about communication.” Subsequent to the intervention by a staff attorney of the Public Records Division, I learned in a response sent to this office on March 11, 2021, the Town is “checking with town counsel to discuss [the] belief that all communication between the town and counsel is exempt from the public records law.” Please be advised, pursuant to 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 Ms. Dormer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Cara Dahill SPR21/0502 Page 3 March 12, 2021 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