Jeffrey R. Porter v. Millis, Town of - Public Schools (SPR 20211278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2021 SPR21/1278 Karen M. Bouret DeMarzo Operations Support Manager Town of Millis 900 Main Street Millis, MA 02054 Dear Ms. DeMarzo: I have received the petition of Attorney Peter C. Mulcahy of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. appealing the response of the Town of Millis (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2021, Jeffrey R. Porter requested five categories of records including “…documents and communications in any way referring or relating to…Town of Aqueous Film Forming Foam (‘AFFF’)…” and “perfluoroalkyl and polyfluoroalkyl substances (collectively, ‘PFAS’)…” The Town provided multiple responses, which included responsive records. Unsatisfied with the Town’s responses, Attorney Mulcahy petitioned this office and SPR21/1278 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. 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

Karen M. Bouret DeMarzo SPR21/1278 Page 2 June 7, 2021 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 a response sent on April 28, 2021, the Town states it “undertook a review of the existing files and disposed of many in accordance with the attached retention schedule. Generally, as a matter of practice, Fire Department files are not stored at Town Hall. As such, we have provided any and all documents in our possession with the exception of the emails previously discussed.” In his appeal, Attorney Mulcahy states “…ninety days after the Town’s receipt of the Request, we have received only eight responsive documents from the Town and have yet to receive any explanation from the Town regarding its purported inability to search electronic documents and how that inability might be addressed, or its retention policies.” Attorney Mulcahy further states “[t]he Town’s response did not identify a reasonable timeframe in which the Town would produce the records sought, and more than twenty-five business days passed, as of March 31…before we finally received only eight responsive documents in mid-April.” Additional Responsive Records; Records Management 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). In light of Attorney Mulcahy’s appeal, I find it is unclear if the Town possesses additional responsive records to the request. Further, where the Town states it “undertook a review of the existing files and disposed of many in accordance with the attached retention schedule” I find that the Town must demonstrate whether it followed proper records retention protocol. Please note, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Town is ordered to provide Mr. Porter with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Karen M. Bouret DeMarzo SPR21/1278 Page 3 June 7, 2021 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: Jeffrey R. Porter Kate Feodoroff, Esq., Mead, Talerman & Costa, LLC