Andrew McIsaac v. Pembroke, Town of - Office of the Town Clerk (SPR 20220060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2022 SPR22/0060 Margaret Struzik Town Clerk Town of Pembroke 100 Center Street Pembroke, MA 02359 Dear Ms. Struzik: I have received the petition of Andrew D. McIsaac appealing the response of the Town of Pembroke (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. McIsaac requested: “…a copy of all incident reports involving Pembroke Hospital created between January 1, 2021 [and] December 31, 2021.” In a January 10, 2022 email, the Town informed Mr. McIsaac that the Town Clerk’s Office has no records responsive to the request for incident reports involving Pembroke Hospital. Mr. McIsaac was directed to contact the Town Manager’s office via a Town website link. As a result, Mr. McIsaac petitioned the Supervisor of Records, and this appeal was opened. 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). 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

Ms. Margaret Struzik SPR22/0060 Page 2 January 13, 2022 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. Based on the Town’s January 10th response, it remains unclear if any of the Town’s departments possess records responsive to Mr. McIsaac’s request. The Town is advised, “[a] request for public records may be delivered to the [RAO] by hand or via first class mail at the record officer’s business address, or via electronic mail to the address posted by the ….municipality that the [RAO] serves.” See G. L. c. 66, § 10(a)(iii). Therefore, the Town may not require that a requestor use a particular form or method of requesting records of the Town. It is unclear why the Town Clerk’s Office could not have forwarded Mr. McIsaac’s request to the correct department for a response, including forwarding the request directly to the Town Manager. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Therefore, I find that the Town has not met its burden in responding to this request. Order Accordingly, the Town is ordered to provide Mr. McIsaac 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. Mr. McIsaac may appeal the substantive nature of the Town’s subsequent response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew D. McIsaac