Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20212637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2021 SPR21/2637 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 8, 2021, Mr. Toomey requested: “…all information relating to Town of Rowley electric light department bills or invoices for the property located at [named address] under any names including and not limited to, [named person and named location] services over the last 6 months. This includes light poles rental fees or power usage.” Prior appeals The responsive records were the subject of prior appeals. See SPR 21/2275 Determination of the Supervisor of Records (September 21, 2021); SPR21/2019 Determination of the Supervisor of Records (August 24, 2021); SPR21/1824 Determination of the Supervisor of Records (August 6, 2021) and SPR21/1560 Determination of the Supervisor of Records (July 8, 2021). In my September 21st determination, I found that it was unclear whether the Town had additional records and ordered the Town to provide a response. On October 7, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Toomey petitioned this office and this appeal, SPR21/2637, 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). 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

Catherine M. McClenaghan. SPR21/2637 Page 2 October 25, 2021 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. 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 October 7th Response In its October 7, 2021 response, the Town stated, “as explained in that letter in detail, exception (c) permits withholding public records containing ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy.’ The legal arguments setting forth the privacy concerns regarding the requested information are set forth in detail in that letter, which we have again attached for your convenience.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Town to redact responsive records, the Town must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously

Catherine M. McClenaghan. SPR21/2637 Page 3 October 25, 2021 impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey Diedre Lawrence, Esq.