Paul DeMeo v. Gardner, City of - Community Development & Planning (SPR 20210886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2021 SPR21/0886 Trevor Beauregard Director City of Gardner Department of Community Development & Planning 115 Pleasant Street, Room 201 Gardner, MA 02571 Dear Mr. Beauregard: I have received the petition of Paul DeMeo appealing the response of the City of Gardner Community Development & Planning (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 27, 2021, Mr. DeMeo requested “…[a]LL PARC Grant Applications and material for Bailey Brook Park. This request is to include all e-mails relative to the Bailey Brook Park from and to any state or city of Gardner official.” Prior Appeal This request was subject to a prior appeal. See SPR21/0714 Determination of the Supervisor of Public Records (March 31, 2021). In my March 31st determination, I found that the City provided a supplemental response. On March 30, 2021, the City provided a response. Unsatisfied with the response, Mr. DeMeo petitioned this office, and SPR21/0886 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 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

Trevor Beauregard SPR21/0886 Page 2 April 21, 2021 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. Current Appeal In its March 30th response, the City indicated that there were additional emails responsive to the request. In his current appeal, Mr. DeMeo asserts “[t]he information provided was incomplete and very narrow…Legal records including Title Search information was not provided nor any legal invoices for work done. Additionally there were no e-mails provided having to do with inter- office communication within Gardner City Hall having to do with the Bailey Brook Project. There were no e-mails from the mayor having to do with the project.” Based on the City’s response, it is unclear if it possesses additional records responsive to the above request. 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 City is ordered to provide Mr. DeMeo 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: Paul DeMeo