Mary Morgan v. Wareham, Town of (SPR 20211156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2021 SPR21/1156 Michelle Bissonnette Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Mary Morgan appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2021, Ms. Morgan requested “the full investigation report that was done as a response to the complaints made against [three individuals].” The Town responded on May 6, 2021, indicating that it was withholding responsive records. Unsatisfied with the Town’s response, Ms. Morgan appealed, and this case was opened as a result. Status of Requestor In her appeal petition, Ms. Morgan states that she is “currently on the School Committee and [has] been since 2016” and points out that “the investigation was regarding a complaint made by school employees.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Morgan’s status as a member of the School Committee will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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

Michelle Bissonnette SPR21/1156 Page 2 May 14, 2021 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. Current Appeal In her appeal petition Ms. Morgan contends that “the investigation was completed and a summary was shared with the School Committee in an executive session. At that time [she] asked that [they] see the whole report and was told that [they] could not see it.” She goes on to explain that “[t]his investigation has been closed and the business manager settled and the bookkeeper retired.” The Town’s May 6th Response In its May 6, 2021 response, the Town indicates “the report is only one part of the investigation, and as the investigation is wrapped up with the ongoing litigation, it is still open.” The Town further indicates that it “would not release the report without approval from insurance defense counsel for fear of prejudicing Wareham’s defenses. Insurance counsel may question whether he can defend Ms. Morgan should the report be released at her request, and [the Town] would not want to put Ms. Morgan in the position of having to pay for her own defense if insurance coverage of her is withdrawn.” Pending litigation 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor:

Michelle Bissonnette SPR21/1156 Page 3 May 14, 2021 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Based on the Town’s response, it is unclear whether there is active litigation concerning the requested records. Specifically, the Town has not provided a docket number referring to the possible litigation discussed in the Town’s response. See 950 C.M.R. 32.08(2)(b). The Town must clarify this. Further, please note that a change in the status of any pending litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, the Town is ordered to provide Ms. Morgan with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Mary Morgan