Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20211622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2021 SPR21/1622 Mary Lou Folan Town Clerk Town of Norwood 566 Washington Street Norwood, MA 02062 Dear Ms. Folan: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Donovan requested records relating to a certain public records request, including the Town’s response and communications pertaining to that request. Previous appeal This request was the subject of a previous appeal. See SPR21/0734 Determination of the Supervisor of Records (April 7, 2021). The Town provided a response with responsive records on June 30, 2021. Unsatisfied with the Town’s response, Mr. Donovan petitioned this office and SPR21/1622 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

Mary Lou Folan SPR21/1622 Page 2 July 16, 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. The Town’s June 30th response In its June 30, 2021 response, the Town provided “emails of responsive documents” to Mr. Donovan. He appealed the Town’s response to this office explaining he “requested a copy of the video files, and numerous communications” and “there are no claimed exemptions.” Mr. Donovan states in his appeal that, “it is clear numerous records are missing.” 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. Donovan regarding the existence of missing responsive records, I find it is unclear whether additional responsive records exist. The Town must clarify this matter. This office continues to encourage Mr. Donovan and the Town to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Donovan 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.

Mary Lou Folan SPR21/1622 Page 3 July 16, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Donovan Karis North, Esq., Town Counsel