Peter Culhane v. Milton, Town of - Town Clerk (SPR 20211003)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1003 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 responses of the Town of Milton (Town) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 7, 2021, Mr. Culhane requested: 1. Copies of record requests made to the Town of Milton by . . . or her representative(s) between June 24, 2018 and today, January 7, 2021, regarding: Fair Skies Nation, Inc. Board’s June 24, 2018 conference call, the Select Board’s responses to and actions on . . . accusations against . . . ; the Norfolk County District Attorney’s actions on . . . accusations; the Quincy District Court hearings dated September 28, 2018, February 8, 2019, and March 12, 2019; the Select Board’s “Statement,” dated May 8, 2019; Executive Sessions devoted to [named individual] . . . 2. Copies of all of the Town of Milton’s responses (all forms, i.e., original, supplemental, and corrections to original or supplemental responses), including her appeals and the Secretary of State’s determinations for each of the requests identified in paragraph # 1. 3. Copies of record requests made to the Town of Milton by . . . or his representative(s) between June 24, 2018 and today, January 7, 2021, regarding: Fair Skies Nation Board’s June 24, 2018 conference call; the Select Board’s responses to and actions on . . . accusations; the Norfolk County District Attorney’s actions on . . . accusations; the Quincy District Court hearings dated September 28, 2018, February 8, 2019, and March 12, 2019; the Select Board’s Statement dated May 8, 2019; the Executive Sessions devoted to [named individual] . . . 4. Copies of all of the Town’s responses (all forms, i.e., original, supplemental, and corrections to original or supplemental responses), including his appeals and the Secretary of State’s determinations for each of the requests identified 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. SPR21/1003 Page 2 May 4, 2021 in Paragraph # 3. Also, on January 27, 2021, Mr. Culhane requested copies of email records sent between identified individuals and forwarded to named individuals within Milton’s Town government. Previous petition The January 7th request was the subject of a time petition. See SPR21/0152 (January 29, 2021). In my January 29th determination, I found the Town had established good cause for a time extension of 30 business days. The Town provided initial responses on January 22, 2021 and February 10, 2021, respectively, requesting an extension of time to produce responsive records. Claiming to not have received any further response from the Town, Mr. Culhane petitioned this office and this appeal, SPR21/1003, 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. The Town’s January 22nd and February 10th responses In its January 22, 2021 and February 10, 2021 responses, the Town indicated that it possesses records responsive to Mr. Culhane’s requests and is continuing to search for any additional records that are responsive to the requests. The Town also indicated that it required additional fifteen (15) business days to respond to the requests. 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

Kevin S. Freytag, Esq. SPR21/1003 Page 3 May 4, 2021 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