Steve Walther v. Andover, Town of - Town Clerk (SPR 20220628)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 30, 2022 SPR22/0628 Melissa Ripley Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Ripley: I have received the petition of Steve Walther appealing the response of the Town of Andover (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2022, Mr. Walther requested nine categories of records including: 8. Any documents such as draft or interim reports, outlines, supplemental materials, interview notes or transcripts supplied by Nixon Peabody (or anyone employed by them) to the Town. 9. Any prior (to initiating this work for hire report) communications between the Town (and Town employees) and Nixon Peabody (or anyone employed by them), covering the timeframe of 2018 through the present day. The Town provided responses on February 10, 2022 and February 11, 2022. Unsatisfied with the Town’s responses, Mr. Walther petitioned this office and this appeal, SPR22/0628, 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 agency or municipality 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); 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 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

Melissa Ripley SPR22/0628 Page 2 March 30, 2022 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Item 8 In its February 10, 2022 response, the Town indicates that it “. . . is not in possession of such documents.” In his appeal petition, Mr. Walther states the following: “I am highly skeptical that the Town never received or reviewed a draft report prior to publicly releasing the report.” I find the Town must clarify if it possesses records responsive to Mr. Walther’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that records exist, they must be provided in a manner consistent with the Public Records Law. G. L. c. 66, § 10(b). Also, the Town must clarify whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, §10(a)(ii), (b)(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Item 9 In its February 10, 2022 response, the Town explains that an identified individual “is an Attorney at Nixon Peabody LLP and is also the chair of the Andover Conservation Commission. Accordingly, there are many communications since 2018 by and between [the Attorney] and town employees, Town Counsel, and officials in his role as the Chair of the Commission. There will be considerable expense to you in connection with responding to this request so I suggest that you modify or clarify this request. I reserve the right to redact or not produce such records, if appropriate, if you decide to keep this request as is, and you make payment of the estimated cost which I would provide to you. . . .” Based on the Town’s response, on February 11, 2022, Mr. Walther clarified his request, indicating “. . . I will clarify this request (as suggested) to be limited to communications between Nixon Peabody and the Town related to actual or prospective work arrangements of Nixon Peabody for the Town over the time period previously noted. This should eliminate any Conservation Commission related correspondence.”

Melissa Ripley SPR22/0628 Page 3 March 30, 2022 Subsequently, the Town responded on February 11th stating, “[i]n order for the Town of Andover to respond to this request, please state the new request in its entirety.” On February 14, 2022, Mr. Walther restated his request as: 9* Any prior (to initiating this work for hire report) communications between the Town (and Town employees) and Nixon Peabody (or anyone employed by them), covering the timeframe of 2018 through the present day, related to actual or prospective work arrangements of Nixon Peabody for the Town. . . . *revised to account for a town employee who also works for Nixon Peabody[.] On March 4, 2022, Mr. Walther inquired whether the Town intends to provide a response to his revised request. In light of the above, I find the Town must clarify whether it possesses records responsive to Mr. Walther’s revised request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Town is ordered to provide Mr. Walther with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Steve Walther