John Crow v. Barnstable, Town of - Office of Town Clerk (SPR 20212206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2206 Ann M. Quirk Town of Barnstable Office of the Town Clerk 367 Main Street Barnstable, MA 02601 Dear Ms. Quirk: I have received the petition of John Crow appealing the response of the Town of Barnstable (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2021, Mr. Crow requested ten (10) categories of “information specific to a ‘tight tank’” on a property. The Town provided a response on July 19, 2021, which included responsive records. Claiming the records were not responsive to his request, Mr. Crow provided clarification regarding the requested records on July 25, 2021. On August 5, 2021, the Town provided a response requesting Mr. Crow to submit a new public records request. Unsatisfied with the Town’s response, Mr. Crow petitioned this office and this appeal, SPR21/2206, 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

Ann M. Quirk SPR21/2206 Page 2 September 2, 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s August 5th Response Because Mr. Crow requested from the Town records held by various departments, the Town sent Mr. Crow a letter on August 5, 2021 requesting, “…that [Mr. Crow] submit new requests through the Town’s FOIA system that clearly state[s] what [Mr. Crow] is looking for, including an appropriate timeframe for the records, and with whatever search terms, if any, that [Mr. Crow] would like [the Town] to use while searching electronically.” The Town also requested that Mr. Crow submit “a separate request to…any department from which [he was] seeking records.” In Mr. Crow’s appeal to this office, he stated, “…the Town [initially] sent me completely non-responsive information…I have now not heard from the Town since August 5, 2021, when the [T]own…wrote to me to say [they]…wanted me to put in a brand-new request.” Mr. Crow also stated, “I sent back a clarification email on August 6, 2021...[and]…[the Town] has since gone dark…I sent a follow-up on August 24, 2021, asking about the timing of a reply. The Town did not reply to that, either.” 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). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). 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. Crow regarding the existence of responsive records, I find it is unclear whether the Town possesses records responsive to his request. The Town must clarify this matter. This office encourages Mr. Crow 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). 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

Ann M. Quirk SPR21/2206 Page 3 September 2, 2021 Conclusion Accordingly, the Town is ordered to provide Mr. Crow 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, ./'}. l7 ~ ~ ~ -· ~~. 0 ~ Rebecca S. Murray Supervisor of Records cc: John Crow 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