Michael Muadin v. Lenox, Town of - Town Clerk (SPR 20212291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2291 Kerry Sullivan Records Access Officer Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Michael Muadin appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2021, Mr. Muadin requested various categories of records within the Town’s possession. Previous appeal This request was the subject of a previous appeal. See SPR21/2282 Determination of the Supervisor of Records (September 8, 2021). The Town provided a response on September 8, 2021. Unsatisfied with the Town’s response, Mr. Muadin petitioned this office and this appeal, SPR21/2291, 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

Kerry Sullivan, RAO SPR21/2291 Page 2 September 21, 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 September 8th Response The Town’s September 8, 2021 response provided records and indicated, “[a]ttached [Mr. Muadin] will find the items [Mr. Muadin] requested in your Records Request dated August 23, 2021.” Also the Town asserted, “included below the link to the Housing Authority's page on our website if [Mr. Muadin] like to look at the Minutes/Agenda.” In Mr. Muadin’s appeal to this office on September 8, 2021, he indicated he “only received a limited series of e-mail regarding the revision of the Zoning Bylaws from a period in May 2021.” Further, he asserts that “other e-mails were withheld beginning from the dating of the first contracts and other documents in September 2020 to the present.” 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. Muadin regarding the existence of responsive records, I find it is unclear whether additional responsive records exist. The Town must clarify this matter. This office continues to encourage Mr. Muadin 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. Muadin 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.

Kerry Sullivan, RAO SPR21/2291 Page 3 September 21, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Muadin