Paul Waple v. Swansea, Town of - Town Clerk (SPR 20220903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 2022 SPR22/0903 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Paul Waple appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2022, Mr. Waple requested “copies of all ballot images from all five precincts from the annual town election on Monday April 11, 2022.” The Town responded on April 13, 2022, stating that it was withholding responsive records under Exemption (a) of the Public Records Law. Unsatisfied with the Town’s response, Mr. Waple appealed, and this case 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 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

Diane Pelland SPR22/0903 Page 2 April 26, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Waple notes that he “would be satisfied with an appointment to come in, sit down and review the documents in person, without having to make copies.” The Town’s April 13th Response In its April 13, 2022 response, the Town cites Exemption (a) of the Public Records Law and G. L. c. 54, § 109 for withholding the responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Town cites G. L. c. 54, § 109, which provides in pertinent part: City and town clerks shall retain in their custody the envelopes or containers containing the ballots cast, without examining them or permitting them to be examined by any person except as required by law, and upon the expiration of the period fixed for their preservation shall cause such ballots to be destroyed.

Diane Pelland SPR22/0903 Page 3 April 26, 2022 City and town clerks shall retain in their custody the voting lists as long as they retain the ballots cast. They shall then transmit such voting lists to the registrars of voters, and shall destroy the ballots marked “Spoiled”, without examining them or permitting them to be examined. Such voting lists shall be preserved by the registrars of voters for reference for two years after the expiration of which they may be destroyed. City and town clerks shall retain in their custody ballots not cast for 30 days or until any contest is determined or claim is withdrawn under section 134, and shall then make such disposition of the ballots not cast as they consider proper. G. L. c. 54, § 109. In the Town’s response, the Town Clerk argues the following: M.G.L. c. 54, § 109 requires that I ensure that all cast ballots remain sealed until they are destroyed in accordance with the statutory timeframe, being unsealed only for the purposes of a properly petitioned recount. [Mr. Waple has] presented no authority under the law that would allow [him], in particular, to examine the ballots. Where the Town has demonstrated that the requested records are those described in G. L. c. 54, § 109, I find that the Town may properly withhold the requested ballots. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Waple 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul Waple