Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210961)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2021 SPR21/0961 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 November 10, 2020, Mr. Culhane requested 3 categories of records. On November 25, 2020, the Town provided records responsive to categories I and III. The Town submitted a petition regarding category II of the request. See SPR20/2323 Determination of the Supervisor of Records (December 4, 2020). Please refer to the December 4th determination for an analysis of this issue. Subsequently, on January 15, 2021, the Town provided a response, which included responsive records. Unsatisfied with one of the documents, Mr. Culhane submitted a new public records request on January 20, 2021. On January 20th, Mr. Culhane requested “. . . the entire record of [an identified individual’s] text conversation with a Town of Milton employee or appointee, likely, but not necessarily . . . beginning on p. 2,219 of its response to me. . . .” Claiming to not have received a response, Mr. Culhane petitioned this office and this appeal, SPR21/0961, 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

Kevin S. Freytag, Esq. SPR21/0961 Page 2 April 28, 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. Order Despite being notified of the opening of this appeal, no response has been provided. 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