Grace Ferguson v. Erving, Town of (SPR 20220957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2022 SPR22/0957 Bryan Smith Town Administrator Records Access Officer Town of Erving 12 East Main Street Erving, MA 01344 Dear Mr. Smith: I have received the petition of Grace Ferguson of WBUR appealing the response of the Town of Erving (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, Ms. Ferguson requested the following: - All internal affairs investigation records for [a named individual] - Records showing the date [the individual] was hired by the Erving Police Department. The Town responded on April 22, 2022, providing one responsive record, providing a fee estimate for additional records, and stating that it would require 25 business days to provide the additional records. Unsatisfied with the Town’s response, Ms. Ferguson 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 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

Bryan Smith SPR22/0957 Page 2 May 4, 2022 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. The Town’s April 22nd Response In its April 22, 2022 response, the Town provides one responsive record, a fee estimate, and states that it “will require 25 business days to respond to the other portion of [Ms. Ferguson’s] request, as the magnitude of [her] request unduly burdens the other responsibilities of the TOWN.” In her appeal petition, Ms. Ferguson argues the following: The Town of Erving has stated that it will require 25 business days to comply with [her] request, but it is unclear why it requires that long to compile misconduct records for a single employee who has only been employed by the department for six years. The law normally requires a response within 10 business days. Ms. Ferguson is advised that, under the Public Records Law, if a municipality does not intend to furnish a copy of a public record within 10 business days following receipt of the request, the municipality shall “identify a reasonable timeframe in which the . . . municipality shall produce the public records sought; provided, that . . . for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records.” G. L. c. 66, § 10(b)(vi). Where the Town has indicated that it intends to provide a response within the allowed statutory timeframe, I find that the basis of Ms. Ferguson’s appeal is unclear. Ms. Ferguson is further advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson