Paul DeMeo v. Office of Public Safety and Inspections (SPR 20212814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2814 Ms. Jean McCarthy Records Access Officer Office of Public Safety and Inspections One Ashburton Place; Room 1301 Boston, MA 02108 Dear Ms. McCarthy: I have received the petition of Paul DeMeo of Ryan Realty, appealing the response of the Office of Public Safety and Inspections (Office/OPSI) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 2, 2021, Mr. DeMeo requested “…the [p]ublic [r]ecords on any and all communication with the Board of Appeals pertaining to our appeal, Docket # 21-0087. This should include the audio/video recording of today’s hearing along with any and all communications with Gardner [o]fficials pertaining to our case.” Previous appeal – format of the request In response to the request, on September 2, 2021, Patty Barry informed Mr. DeMeo, “[y]ou must fill out a Public Records Request through our Agency Office of Public Safety & Inspections (OPSI). Please note that the hearing will not be downloaded until Tuesday of next week when I am back in the office.” Later in the day on September 2nd, Mr. DeMeo emailed Ms. McCarthy and again requested the records. After not receiving any response, on September 22nd, Mr. DeMeo petitioned the Supervisor of Records (Supervisor), and the previous appeal was opened. In my October 5th determination, I advised the Office, pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written. . . . [W]ritten requests may be delivered by a requestor to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). 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

Jean McCarthy, RAO SPR21/2814 Page 2 November 9, 2021 Consequently, where Mr. DeMeo submitted his request via electronic mail twice on September 2nd, it is unclear why the Office requires a written request be submitted by filling out a Public Records Law request form before producing responsive records. I found that the Office did not meet its burden in responding to Mr. DeMeo’s September 2nd request under the Public Records Law. On October 5, 2021, I ordered the Office/OPSI to provide Mr. DeMeo with a response to his September 2nd request. See SPR21/2437 Determination of the Supervisor (October 5, 2021). 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). 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. Current appeal On October 14, 2021, the Office provided Mr. DeMeo with a response to his September 2nd request. In its October 14th response, the Office states, “[t]he request was for any and all communication with the Board of Appeals pertaining to Docket #21-0087 and the audio/video recording of the hearing. The Office timely responded with responsive records on September 8, 2021. Mr. DeMeo submitted another public records request on September 30, 2021 for the entire written minutes of his appeal hearing and the audio/visual recording of the hearing on September 2, 2021. The Office timely responded to this request on September 30, 2021. The Office has provided all documents that it has in its possession regarding these specific public records requests.” As a result of the Office’s October 14th response, Mr. DeMeo petitioned the Supervisor, and the current appeal was opened. In his petition, Mr. DeMeo requests that the Supervisor compel the [Office] to provide a COMPLETE Audio/Visual of the entire Public Meeting and the

Jean McCarthy, RAO SPR21/2814 Page 3 November 9, 2021 [r]ecords thereof.” It is Mr. DeMeo’s contention that certain of the discussions and questions asked by the Appeals Board were removed from the public record. Based on the Office’s response, and Mr. DeMeo’s contention that certain of the information was not contained in the copy of the audio/video copy that he received from the Office, it is unclear whether any of its content was withheld under an exemption in the Public Records Law. The Office must clarify this issue. Order Accordingly, the Office is ordered to provide Mr. DeMeo 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: Paul DeMeo, Ryan Realty