Eileen W. Mooney v. Great Barrington, Town of - Housing Authority (SPR 20211264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1264 Madonna Meagher Records Access Officer Town of Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 02130 Dear Ms. Meagher: I have received the petition from Eileen Mooney appealing the response from the Town of Great Barrington’s Housing Authority (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mooney requested records relating to “invoices for Housatonic Water Works.” The Town provided a response on May 7, 2021. Unsatisfied with the Town’s response, Ms. Mooney petitioned this office and SPR21/1264 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

Madonna Meagher, RAO SPR21/1264 Page 2 June 1, 2021 The May 7th response In its May 7, 2021 response, the Town reached out to Ms. Mooney about making arrangements to “get the invoices.” The Town stated it does not have “copies of any statements, haven't for years, they are printed in Ohio. [The Town] can only produce copies, reprinted bills for the prior billing period. If customers request a copy after 30 days [the Town] can produce an audit which is a billing history detailing charges, payments etc.” Ms. Mooney appealed to this office on May 19, 2021 explaining that she was looking for “originals of Housatonic Water Works invoices from June 2020.” Ms. Mooney explained that the “Great Barrington town manager arranged in February for [Ms. Mooney] to see a year's worth of GBHA invoices. Included in those invoices were 12 HWW invoices dated June 9, 2020. They were marked reprinted and lacked the usual HWW logo and formatting.” Ms. Mooney stated that the invocies “were not copies. Copies would have had the HWW logo and unaltered formatting. They also would not have been marked ‘reprinted.’” 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 Ms. Mooney regarding the existence of additional responsive records, I find it is unclear whether responsive records exist. The Town must clarify this matter. This office continues to encourage Ms. Mooney and the Town to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Mooney with a response to the request, in a manner consistent with this order, the Public Records Law, and its Regulations within 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.

Madonna Meagher, RAO SPR21/1264 Page 3 June 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Eileen Mooney