Thomas M. Carmody v. Lanesborough, Town of (SPR 20212779)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2779 Ruth Knysh Town Clerk Town of Lanesborough 83 North Main Street, P.O. Box 1492 Lanesborough, MA 01237 Dear Ms. Knysh: I have received the petition of Thomas M. Carmody appealing the response of the Town of Lanesborough (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. Carmody requested, “…all survey responce [sic] forms, received by paper or electronic media (190+) as received and in the possession of the Town Administrator Search Committee, All meeting minutes from all meetings of The Town Administrator Search Committee. All other items that were ‘placed on file’ regarding the Town Administrator Search Committee.” Prior appeals The responsive records were the subject of a prior appeals. See SPR21/2203 Determination of the Supervisor of Records (September 13, 2021); SPR21/2565 Determination of the Supervisor of Records (October 19, 2021). In my October 19th determination, I found that the Town intended to provide a response to Mr. Carmody. On October 19, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Carmody petitioned this office and this appeal, SPR21/2779, 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. 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

Ruth Knysh SPR21/2779 Page 2 November 8, 2021 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. The Town’s October 16th response In its October 16th response the Town states, “…enclosed with this e-mail are all of the survey response forms, as well as the consolidated survey results, that are responsive to your request. After a substantive review of the survey results, the name and address of an individual was redacted pursuant to Exemption (c). Please be further advised that it is the Town’s understanding and belief that it has provided any and all e-mails sought in your request…” Current Appeal In his current appeal, Mr. Carmody states, “[t]he e-mails provided are not inclusive of all corrospondance [sic] between committee members. Individual committee members (4), less Chairman…did not provide corrospondance's [sic] for inclusion in the response. Speciffically [sic], an e-mail chain corrospondance [sic]created by [named person] on or around July 27, 2021 and distributed to all committee...” Based on the Town’s October 16th response, it is unclear if the Town possesses any additional responsive records to the request. 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). The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. Carmody 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas M. Carmody Joseph R. Duquette, Esq., KP Law, P.C.