Peter Culhane v. Milton, Town of - Town Clerk (SPR 20210966)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2021 SPR21/0966 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 15, 2021, Mr. Culhane requested: [A]ll MGL-defined records of communications related to Select Board members . . . letter to the Milton Times editor on October 3, 2019. I believe these communications would have taken place between September 25, 2019 and October 3, 2019 and could involve exchanges between: 1. the other three Select Board members . . .; 2. Milton Massport Community Advisory Committee representative . . .; 3. [name individual’s] law partner, town resident . . .; or, 4. the reporters, editor, or publisher of the Milton Times. Along with records of communications between or among those listed, please include drafts, if there are any, of the final letter that was submitted by [named individuals] to Milton Times for publication. The Town responded on February 1, 2021, requesting additional 15 business days to produce responsive records. Claiming to not have received any further response, Mr. Culhane petitioned this office and this appeal, SPR21/0966, 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). 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. SPR21/0966 Page 2 April 30, 2021 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. The Town’s February 1st response In its February 1, 2021 response, the Town states that it “. . . has records that are responsive to your request and is continuing to search for any additional records that are responsive to your request. The Town’s initial search identified over 600 emails which may be responsive to your request and which must be reviewed to determine which documents are responsive. To do so, and in light of the numerous public records requests that you have recently made, the Town avails itself of fifteen (15) additional business days to reply to your request pursuant to G. L. c. 66, § 10(b)(vi).” Based on the Town’s February 1st response, indicating that it has identified over 600 emails, it is unclear when the Town intends to provide Mr. Culhane with the responsive records. 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