Anette Seltzer Lewis v. Wayland, Town of - Office of the Board of Selectmen (SPR 20220423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2022 SPR22/0423 Stephen Crane Acting Town Administrator Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Mr. Crane: I have received the petition of Anette Seltzer-Lewis appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 31, 2021 and again on January 24, 2022, Ms. Seltzer-Lewis requested the scope of work and other documents that were referred to and considered by the [Town’s] Board of Selectmen under Consent Calendar #4 the Route 20 Corridor Project during its 12/13/21 meeting, and an accounting of all monies expended to date, for whatever reason, from the funding source that is also being used to pay for this current effort. Ms. Seltzer-Lewis seeks to obtain an electronic copy of the records. On January 26th, you informed Ms. Seltzer-Lewis, “[a]s the new records officer, I am working to ensure that requests are submitted according to what (I’m told) is the policy using the request form (link above). I’d be grateful if you’d submit it in that way.” In a February 11th email, the Town informed Ms. Seltzer-Lewis, “…this appears to be information that you should review in person, and not provided electronically.” As a result of the Town’s decision to not provide a copy of the record(s), electronically or in paper format, Ms. Seltzer-Lewis petitioned the Supervisor of Records (Supervisor), and this appeal was opened. After this appeal was opened, you explained to a member of my legal staff that the Town will not provide a copy of the records, due to possible manipulation of the document(s). The Town was advised that to withhold a copy of a public record, the Town must claim an exemption in the Public Records Law with specificity. 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 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

Stephen Crane SPR22/0423 Page 2 February 28, 2022 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). Burden of specificity; identify the responsive records The Town denied Ms. Seltzer-Lewis’s request for a copy of the record(s) without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In addition, the Town did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under an exemption in the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). It is unclear what records the Town has in its possession that are responsive to the request. Therefore, the Town must identify how many and what type of record(s) it has in its possession that the Town withheld. Order Accordingly, the Town is ordered to provide Ms. Seltzer-Lewis 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. Ms. Seltzer-Lewis may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Anette Seltzer Lewis