Kathy Souza v. Somerset, Town of (SPR 20210885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2021 SPR21/0885 Richard Brown Town Administrator Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Mr. Brown: I have received the petition of Kathy Souza appealing the response of the Town of Somerset (Town) to her request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Ms. Souza requested from the Town “the full Sage report and or any drafts that exist for Brayton Point.” Previous appeal This request was the subject of a previous appeal. See SPR21/0760 Determination of the Supervisor of Records (April 6, 2021). Subsequent to the opening of this appeal, Ms. Souza received a response from the Town. Unsatisfied with the Town’s response, Ms. Souza petitioned this office and this appeal, SPR21/0885, 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. 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

Richard Brown SPR21/0885 Page 2 April 21, 2020 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 April 2nd response On April 2, 2021, Ms. Souza emailed this office stating she was “in possession of the report that was finalized February 26th 2021.” On April 6, 2021 in her appeal petition, Ms. Souza explained she was still “looking for a report and all versions of the report, draft or otherwise, and all associated data, from Somerset Town Administrator Richard Brown, from Sage Environmental, paid for by the town of Somerset tax payers…The Chair of the Board of Selectmen, Holly Mcnamara has posted on social media that there may be at least three versions of the report in the possession of the Town Administrator.” Ms. Souza further explained that the Town “did not send me the report and did not send me any other communication regarding the report. As a matter of fact, he declared the report was a draft and that's why he couldn't send it, which was false, the report received was stamped final.” It is unclear if the Town possesses additional records responsive to the request. Specifically, the Town must clarify whether it possesses records regarding any “draft[s] or otherwise, and all associated data.” 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 Ms. Souza 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: Kathy Souza