Gabriel Schmitt v. Montague, Town of - Board of Health (SPR 20211735)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2021 SPR21/1735 Steven Ellis Town Administrator Town of Montague Board of Health 1 Avenue A Montague, MA 01376 Dear Mr. Ellis: I have received the petition of Gabriel Schmitt appealing the response of the Town of Montague to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2021, Mr. Schmitt requested the following: 1. The complaint/violations report written by [named person] and submitted to the Montague Building Department/inspector on or about November 20, 2020 2. The bound book containing [named person’s] requests for a health code inspection between November 30, 2020 and December 15, 2020. 3. All pages in 2020 of the aforementioned book. 4. A copy of all inspection reports which were filed following [named person’s] inspections on February 25, 2021. On July 12, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Schmitt petitioned this office and this appeal, SPR21/1735, 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 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

Steven Ellis SPR21/1735 Page 2 July 27, 2021 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. The Town’s July 12th response In its July 12th response, the Town asserted “[t]he Montague Board of Health keeps records of inspection requests using a computer system. A bound book system is not utilized. Copies of inspection requests are attached to this email. Complaints are logged into computer system. Copy of inspection report following February 25, 2020 is attached.” Current Appeal In his current appeal Mr. Schmitt indicated that there are additional responsive records to his request. In the appeal he stated “the director of the montague board of health failed to uphold his duties to permit me to inspect his records or provide a copy thereof, or decline to produce records in the manor required by GLC 66 section 10.” Based on the Town’s response, it is unclear if it possesses additional records responsive to the above 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). Conclusion Accordingly, the Town is ordered to provide Mr. Schmitt with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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: Gabriel Schmitt