Mike Offner v. Brookline, Town of - Town Clerk (SPR 20211041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2021 SPR21/1041 Christopher Tisbert Town of Brookline 333 Washington Street Brookline, MA 02445 Dear Mr. Brown: I have received the petition of Mike Offner appealing the response of the Town of Brookline (Town) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Offner requested from the Town “[a]ny invoices, receipts, or other documents that [the Town] Moderator has received for the mailer sent to ‘friends and neighbors’, endorsing individual, per the image below, indicating the total amount that [the Town] Moderator spent on this mailer.” On April 22, 2021, the Town provided a response. Unsatisfied with the Town’s response, Mr. Offner petitioned this office and this appeal, SPR21/1041, 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. 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

Christopher Tisbert SPR21/1041 Page 2 May 6, 2021 The Town’s April 22nd response On April 22, 2021, the Town emailed Mr. Offner stating “[n]o public funds were used to fund this mailer. Therefore, there are no responsive records to your request in the Town’s possession.” In his appeal petition, Mr. Offner explained “I believe the records would have been in the possession of [the] Moderator.” Records in existence 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). If the Town does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Offner regarding the existence of responsive records, I find it is unclear whether responsive records exist. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Offner 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: Mike Offner