Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210963)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 29, 2021 SPR21/0963 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 January 4, 2021, Mr. Culhane stated: [1] If Attorney . . . from the time she began her investigation until she submitted her report, ever saw or possessed in any format, or held in her hand or hands a copy of [named individual’s] email to the Norfolk County District Attorney, . . . dated June 27, 2018 (a Town of Milton public record), I request a copy of precisely that record which she saw, possessed, or handled. [2] If Attorney . . . from the time she began her investigation until she submitted her report, ever saw or possessed in any format, or held in her hand or hands a copy of [named individual’s] email to the Norfolk County District Attorney, . . . dated July 6, 2018 (a Town of Milton of Milton public record), I request a copy of precisely that record which she saw, possessed, or handled. The Town responded on January 19, 2021, indicating it provided the responsive records to Mr. Culhane in response to a previous request and asserting it is not required to answer questions under the Public Records Law. Unsatisfied with the Town’s response, Mr. Culhane petitioned this office and this appeal, SPR21/0963, 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 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. SPR21/0937 Page 2 April 29, 2021 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. The Town’s January 19th response In its January 19, 2021 response, the Town indicates that the responsive records “. . . were previously provided to you on November 25, 2020 in the Town’s production of documents responsive to your public records request dated November 10, 2020.” The Town explains that the records were redacted pursuant to Exemption (c) of the Public Records Law. The Town further asserts that “. . . the Public Records Law does not permit [it] to answer questions. As a result, the Town declines to answer questions regarding the investigation performed by [an identified Attorney].” Under the Public Records Law, the Town is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10 (a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the Town indicates that it has previously provided the responsive records on November 25, 2020, I find that Mr. Culhane’s appeal related to his January 4th request is resolved. Conclusion Accordingly, where the Town explained it already provided records responsive to this request, and is not required to answer questions in response to a request, I will consider this administrative appeal closed. If Mr. Culhane is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuit of administrative appeal does not limit availability of applicable judicial remedies).

Kevin S. Freytag, Esq. SPR21/0937 Page 3 April 29, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Culhane Susan Galvin