Nancy Brown v. Concord, Town of - Town Clerk (SPR 20212562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2021 SPR21/2562 Stephen Crane Town Manager Town of Concord P.O. Box 535 Concord, MA 01742 Dear Mr. Crane: I have received the petition of Nancy Brown, of the League of Women Voters of Concord & Carlisle Diversity, Equity and Inclusion Committee, appealing the response of the Town of Concord (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 27, 2021, Ms. Brown requested: “[t]he Report of EHW Consulting that pre-dated the Executive Summary document of July 7, 2021, including earlier drafts of the full document.” As a result of not receiving the EHW Consulting report, and the Town not citing an exemption in the Public Records Law to deny access to the responsive report, Ms. Brown petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Brown informed this office that the report was also requested by members of the Select Board at a public meeting, and that the Town Manager would check with the Town’s Labor Counsel to see if it existed and could be released. 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 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

Stephen Crane SPR21/2562 Page 2 October 19, 2021 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). On September 2, 2021, the Town acknowledged Ms. Brown’s request, promising to provide a more formal response soon. On September 15th, Ms. Brown emailed the Town stating, “[t]his email is a reminder that the 10-day response for my August 27 Public Records [r]equest has now expired (midnight on Monday, September 13). I respectfully request an immediate response to my public records request, and no later than the end of the day on Friday, September 17, 2021.” At 10:47 PM on September 15th, the Town responded to Ms. Brown stating, “[w]e are still reviewing the request with the report’s authors and will get back to you as soon as we are able. If you could clarify your goal in making this request perhaps it would accelerate the process.” A final email from Ms. Brown was sent to the Town on September 21, 2021, and to date she has neither received the responsive record nor has she received a written response denying the request under any of the exemptions in the Public Records Law. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days from receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Despite being notified of the opening of this appeal, no response has been provided. In an October 7th email, the you informed this office, “I have forwarded to counsel for review but, generally, the executive summary is a summary of a series of interviews with Town staff, not a larger report. This has been communicated a number of times to Ms. Brown.” Based on your October 7th email, it is unclear whether any records responsive to Ms. Brown’s request exist. Where Ms. Brown made her request on August 27th and has not received a response in compliance with G. L. c. 66, § 10(a)-(b), I find that the Town has not met its burden in responding to Ms. Brown’s request. Order Accordingly, the Town is ordered to provide Ms. Brown with a response to the request, 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.

Stephen Crane SPR21/2562 Page 3 October 19, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nancy Brown, League of Women Voters of Concord & Carlisle