Alex Belote v. Wayland, Town of (SPR 20211585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2021 SPR21/1585 Louise Miller, J.D. Town Administrator Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Miller: I have received the petition of Alex Belote appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Belote requested to inspect or receive copies of records from November 1, 2020 to March 30, 2021 relating to allegations made against an identified person on December 11, 2020. Prior Appeals The responsive records were the subject of prior appeals. See SPR21/1217 Determination of the Supervisor of Records (Supervisor) (May 25, 2021); SPR21/1344 Determination of the Supervisor of Records (June 11, 2021). In my June 11th determination I ordered the Town to provide Mr. Belote with a response pertaining to his request for additional records. On June 23, 2021, the Town responded. Unsatisfied with the response, Mr. Belote petitioned this office and as result this appeal, SPR21/1585, was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

Louise Miller, J.D. SPR21/1585 Page 2 July 12, 2021 exemption or exemptions upon which the withholding is based…”); 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). The Town’s June 23rd response In its June 23rd response, the Town stated “the request for text messages, phone records and recordings on recorded lines: There are none.” Current Appeal In his current June 25, 2021 appeal, Mr. Belote requested additional phone records from the Town. Mr. Belote further asserted, “… it was discovered that town employees used personal emails to communicate about public business related to the information I requested from the town.” Mr. Belote explained, “… [the] phone log from Dec 11th showing multiple to and from the Town. It is not possible that the town cannot access its own phone records. These records are an important part of my public records request.” Burden of specificity in responding to a public records request Upon review of the Town’s response, it is unclear if the Town is in possession, custody or control of records responsive to Mr. Belote’s April 14, 2021 request. 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). The Town must clarify whether it possesses responsive records. Conclusion Accordingly, the Town is ordered to provide Mr. Belote 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Alex Belote