Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210950)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2021 SPR21/0950 Kevin S. Freytag, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Freytag: I have received the petition of Peter Culhane appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 29, 2020, Mr. Culhane requested 5 categories of records “in reference to Mr. Freytag’s email to me on December 23, 2020.” This appeal pertains to items I, III, IV, and V of the original request: I. In his email dated May 7, 2019, 10:32 A.M., [an identified individual] wrote, “The marked draft shows the changes to the draft in the Shared Folder that we approved last night.” For all files/records in the Shared Folder, including drafts and notes, please send me: 1. The version history record for each file including but not limited to the dates, times, authors, editors, suggestions, i.e., the history of any and all interactions with the records; 2. The record indicating the location of the Shared Folder; 3. The record showing who has access to the Shared Folder and each file that it contains, including their defined role (e.g., owner, editor, reviewer, etc.) and their access abilities (e.g., view-only, edit, suggest, comment, etc.); 4. All drafts and final documents in the Shared Folder. III. Ten unredacted records listed in the Privilege Log T000305-102120 (Email Correspondence) and attached to this request. The authors names for the ten emails are highlighted starting on Page 5 of 8. I request copies of records provided by the “Author”, not just a “Recipient(s)”. . . My request includes any information in the record that shows who sent the record to the person gathering the records for the response . . . IV. An unredacted copy of the email received by [an identified individual] that was sent by [an identified individual] on May 7, 2019, 12:41 P.M., regarding “Communication regarding draft Statement of the Select Board regarding Town 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

Kevin S. Freytag, Esq. SPR21/0950 Page 2 April 28, 2021 Employee.” My request includes the information in the record that shows who sent the record to the person gathering the records for the response . . . V. The email authored by [an identified individual] on May 7, 2019 10:20 A.M. was not included in the Privilege Log but should have been. Therefore, I am asking for all records omitted from the Privilege Log (See II.), in all forms (not just emails, but including emails), and from all email accounts (Town, work, personal) of the Select Board members, . . . regarding the Select Board’s “Statement.” . . . Previous petition This request was the subject of a time petition. See SPR21/0189 Determination of the Supervisor of Records (February 4, 2021). In my February 4th determination, I found the Town had established good cause for a time extension of 30 business days. Claiming to not have received a response from the Town, Mr. Culhane petitioned this office and this appeal, SPR21/0950, 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. 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 his appeal petition, Mr. Culhane states “[i]t is now sixty-eight days since your February 4, 2021 letter granting the Town an extension, but I have received no response from the Town of Milton on four of the five sections in my December 29, 2020 request (I, III, IV, and V.)”

Kevin S. Freytag, Esq. SPR21/0950 Page 3 April 28, 2021 In light of Mr. Culhane’s petition, it is unclear when the Town intends to provide him with a response to his request. The Town is advised that the Public Records Law requires that a records access officer, “identify a reasonable timeframe in which the municipality shall produce the public records sought . . .” See G. L. c. 66, 10(b)(vi); see also 950 C.M.R. 32.06(2)(i). Consequently, I find the Town must identify a reasonable timeframe it intends to provide the responsive records. To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Culhane 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: Peter Culhane Susan Galvin