Jeffrey J. Kristek v. Wilbraham, Town of (SPR 20212081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2081 Carole J. Tardif Town Clerk Town of Wilbraham 240 Springfield Street Wilbraham, MA 01095 Dear Ms. Tardif: I have received the petition of Jeffrey Kristek appealing the response of the Town of Wilbraham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, Mr. Kristek requested, “[a]ll correspondence between any representative for the Town (excluding legal counsel) and Chief Andrews regarding firefighter requests for time off under the FMLA or any form of leave for the purpose of taking care of children in the past year (July 2020 to July 2021).” The Town provided a response on July 30, 2021. Unsatisfied with the Town’s response, Mr. Kristek petitioned this office and this appeal, SPR21/2081, 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

Carole J. Tardif, Chief RAO SPR21/2081 Page 2 August 31, 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 July 30th Response On July 30, 2021, the Town provided a response stating, “[a]ttached are documents that are responsive to [Mr. Kristek’s] below information request. Please note that these documents have been redacted to the extent they contain bargaining strategy of the Town of Wilbraham as well as the names and identifying email addresses of any firefighters other than the Grievant [identified individual] who have taken FMLA leave.” Based on the Town’s response, it is unclear what exemption it is claiming to withhold the redacted information from disclosure. If the Town 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). Conclusion Accordingly, the Town is ordered to provide Mr. Kristek 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: Jeffrey Kristek Nick Breault