Martin Y. Benson v. Acton, Town of - Town Clerk (SPR 20221137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2022 SPR22/1137 Eva Szkaradek Records Access Officer Town of Acton 472 Main Street, Town Hall Acton, MA 01720 Dear Ms. Szkaradek: I have received the petition of Martin Y. Benson appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2022, Mr. Benson requested the following records: [1] All emails sent or received between [identified individuals], from October 1, 2021 to the present…[;] [2] All emails, to or from [named individual], that relates in any way to the ten [10] key words from June 1, 2020 to the present…[;] [3] All emails, to or from [named individual], that relates in any way to the five [5] key words; from July 1, 2018 to present…[;] [4] All police reports that relate to the investigation of Zoom bombing incidents which occurred at school committee meetings on December 17, 2020 and January 7, 2021 as well as the Select Board meeting on January 11, 2021. The Town provided a response on May 12, 2022. Unsatisfied with the response, Mr. Benson petitioned this office and this appeal, SPR22/1137, 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 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(d)(iv) (written response must “identify 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

Eva Szkaradek SPR22/1137 Page 2 May 26, 2022 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). The Town’s May 12th Response In its response, a representative of the Town stated “…please find attached the information [the Town has] related to item number four of your request. Due to the breadth of your request, we will require more time to gather the remaining information…” Current Appeal In his appeal petition, Mr. Benson states “… [t]he Town has issued only vague responses none of which are in compliance with the Public Records Law. Further, it’s not clear how many records exist and when they will be released.” Despite the Town’s response, it remains unclear what responsive records the Town possesses with respect to the first, second and third prongs of Mr. Benson’s request. The Town must identify what records it has in its possession, custody or control that are responsive to Mr. Benson’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identified the record, categories of records, or portions of the record it intends to withhold). As a result, I find that the Town did not satisfy its burden in responding to Mr. Benson’s records request. Conclusion Accordingly, the Town is ordered to provide Mr. Benson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Access 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: Martin Y. Benson