David Durgin v. Dudley, Town Of - Town Clerk (SPR 20213260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 27, 2021 SPR21/3260 Lori Smith Town Clerk/Records Access Officer Town of Dudley 71 W Main Street Dudley, MA 01571 Dear Ms. Smith: I have received the petition of David Durgin appealing the response of the Town of Dudley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2021, Mr. Durgin requested, “…any and all emails regarding the Durgin Family quarantine from...[the Town Nurse], and or any members of the Dudley Board of Health.” The Town provided responses on December 9, 2021 and December 10, 2021. Unsatisfied with the Town’s responses, Mr. Durgin petitioned this office and this appeal, SPR21/3260, 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 School 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(d)(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). The Town’s December 9th and December 10th Responses On December 9, 2021, the Town stated, “Pursuant to 105 CMR 300.100, instances of 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

Lori Smith SPR21/3260 Page 2 December 27, 2021 [infectious diseases] must be reported to the local Board of Health. However, under 105 CMR 300.120, information about a person with an infectious disease may not be released without that person’s consent. Here, where you ask for records relating to your family members, there is no way that the Town could redact them in such a way as to protect the personally identifying information sufficient to comply with the requirements of 105 CMR 300.120. In the absence of written authorization from your wife and children, the Town is unable to provide you with the information you have requested.” On December 10, 2021, after Mr. Durgin provided the Town with consent forms from his family members, the Town provided responsive records. Current Appeal In his current appeal, Mr. Durgin states, “I would like to open an appeal as the Town only provided a few emails as opposed to the ‘any and all’ that was requested.” In an email from town counsel sent on December 20, 2021, the Town stated, “[a]s [Mr. Durgin’s request] was directed to the Town’s Town Clerk and Town Administrator (who are both RAOs for the Town), the request was treated as a Public Records Request, as Mr. Durgin files many such requests with the Town. [The Town] note[s] that the public does not have a right to access information about specific individuals with an infectious disease, per 105 CMR 300.120.” Conclusion It is my understanding that the Town provided Mr. Durgin with responsive records outside of the Public Records Law. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A (a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Durgin in his appeal petition, I am unable to issue a determination at this time. If Mr. Durgin is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Durgin Michele E. Randazzo, Esq.