Joanne Demack-Harding v. Abington, Town of - Office of the Town Manager (SPR 20213134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 7, 2021 SPR21/3134 Scott Lambiase Town Manager Records Access Officer Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Scott Lambiase: I have received the petition of Joanne Demack-Harding appealing the response of the Town of Abington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 9, 2021, Ms. Demack-Harding requested, “all group text messages between Town Selectmen and the Town Manager, all text messages sent between themselves, individually, or in a group with the Town Manager, all text messages sent from the Town Manager to the Selectmen in group form or individually from April 1st, 2021 through…November 9th, 2021.” The Town provided a response on November 23, 2021. Unsatisfied with the response, Ms. Demack-Harding petitioned this office and this appeal, SPR21/3134, 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) (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 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

Scott Lambiase SPR21/3134 Page 2 December 7, 2021 burden of establishing the applicability of an exemption). The Town’s November 23rd Response On November 23, 2021, the Town stated, “due to the broad nature of the records requested, partly due to the fact that the search for responsive records requires that the Town obtain, segregate, and review correspondences occurring on various individuals’ cellular phones, additional time is required to produce the requested records. The Town will provide you with records within fifteen (15) business days from the date of this correspondence.” Current Appeal In her November 30, 2021, Ms. Demack-Harding stated, “I am appealing the Town of Abington’s decision to not comply with the attached public records request…I received a response to my request on the 23rd of November failing to fulfill my request.” Where the Town has indicated that they intend to provide a response within the allowed statutory timeframe, it is unclear the basis of Ms. Demack-Harding’s appeal. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). Conclusion The Town is ordered to provide a response to the request in compliance with the Public Records Law and its Access Regulations. If issues remain once Ms. Demack-Harding receives the response, she may file an appeal within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joanne Demack-Harding