Alex Neary v. Brookline, Town of - Town Clerk (SPR 20212284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2284 Benjamin Kaufman Town Clerk Town of Brookline 333 Washington Street; Room 104 Brookline, MA 02445-6853 Dear Mr. Kaufman: I have received the petition of Alex and Zi Neary appealing the response of the Town of Brookline (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, Alex and Zi Neary requested copies of records from January 1, 2021 to the present regarding: 1. Any and all communications, including but not limited to email communications, sent or received by any Town official including Select Board members regarding 17 Hart Street or the so-called “Hart’s Content” application to create a local historic district; 2. Any and all communications, including but not limited to email communications and text messages, sent of received by any Town staff person regarding 17 Hart Street or the so-called “Hart’s Content” application to create a local historic district; and, 3. All minutes of the Town’s Preservation Commission, including draft minutes from January 1, 2021 to the present. In an August 4, 2021 initial response, the Town informed Alex and Zi Neary, “[b]ecause the magnitude of the request unduly burdens the other responsibilities of relevant Town staff, the Town is unable to respond to your request within 10 business days of receipt of the request. Therefore, you shall receive a response to your request within 25 business days of July 22, 2021, which we have calculated to be August 26, 2021.” On August 23, 2021, the Town provided Alex and Zi Neary with responsive records via email. Unsatisfied with the production of the records, Alex and Zi Neary petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In their petition, the requestors explain that the Town, “…only provided responsive records sent or received by two employees in a single [Town] municipal department, along with a small subset of the meeting minutes requested.” 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

Benjamin Kaufman SPR21/2284 Page 2 September 20, 2021 On September 13th, Alex and Zi Neary sent this office an email listing the email addresses that pertain to the records they did receive. Their correspondence to this office also lists the email addresses that pertain to the records that they have not received. This office forwarded Alex and Zi Neary’s correspondence to the Town Clerk’s office to assist with production of responsive records. 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 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). In its August 23rd response, the Town provided certain of the responsive emails and meeting minutes; however, not all of the requested records were provided. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Alex and Zi’s request was submitted on July 22nd, and the Town, to date, has not provided all the records responsive to the request, I find that the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi).

Benjamin Kaufman SPR21/2284 Page 3 September 20, 2021 It is my understanding that the Town, including its Information Technology Department, is searching for the balance of the records. The Town also informed this office that it is reviewing the records that have been compiled to date for any exempt material. Consequently, I find the Town must provide an estimated date as to when it intends to complete the search and review of the records, and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records to Alex and Zi Neary on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Alex and Zi Neary 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, 'illuvwM er £) ll __ ~ _ ~ • ~ . • Rebecca S. Murray Supervisor of Records cc: Alex and Zi Neary