Dawn Metzger v. Hanover, Town of - Building and Inspection Services (SPR 20212297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2297 Joseph Stack Building/Zoning Official/Assistant Health Agent Town of Hanover 550 Hanover Street Hanover, MA 02339 Dear Mr. Stack: I have received the petition of Dawn Metzger appealing the response of the Town of Hanover (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Metzger requested copies of the records relating to the decision to condemn an identified house. In communications to Ms. Metzger on September 7th and 8th, the Town denied the request. Unsatisfied with the Town’s response, Ms. Metzger petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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

Joseph Stack SPR21/2297 Page 2 September 20, 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. Burden of specificity in responding and claiming exemptions The Town denied Ms. Metzger’s request without claiming any exemption(s) in the Public Records Law that would support the withholding of any responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 - - - - - - Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, in its September 7th and 8th responses, the Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under the exemptions in the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Town withheld any responsive records without identifying the records. Therefore, the Town must identify what type of records it has in its possession that the Town withheld. Conclusion Accordingly, the Town is hereby ordered to provide Ms. Metzger 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, Rebecca S. Murray Supervisor of Records cc: Dawn Metzger