William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20221171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2022 SPR22/1171 Catie McClenaghan Town Clerk-Public Records Access Officer P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of William A. Moschella, Esq. appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2022, Attorney Moschella requested a copy of records relating to “…the Town’s Zoning Board of Appeals (ZBA) Case No. 22.05. Also any material held individually by any board members not covered by any exemptions of the public records law subject to disclosure relating to the aforementioned appeal (i.e. emails also should be included from board members relating to [ZBA Appeal #22.05, [Town] boards, or inter-department communication).” Attorney Moschella requested the records in electronic format, and informed the Town that he would provide the Town with a USB Drive to download and save the responsive records. The Town produced approximately 324 pages of responsive records. After Attorney Moschella reviewed the records provided, he indicated that records pertaining to this Zoning Board of Appeals’ matter were not among the production from the Town. As a result, on May 18, 2022, Attorney Moschella petitioned the Supervisor, and this appeal was opened. In his May 18th petition, Attorney Moschella asserts, “after a review of the information supplied pursuant to the initial request is provided below. The information supplied is incomplete missing and abundant amount of materials that were submitted to the Town's Zoning Board of Appeal (ZBA). Numerous amount of material supplied by the applicant and other evidentiary materials submitted are missing from the production of a valid records request. Material was submitted to the ZBA by the applicant that was confirmed and copied but missing from the supplied materials. Additionally other persons submitted an abundant amount of material that is also missing from the production.” 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

Ms. Catie McClenaghan SPR22/1171 Page 2 May 31, 2022 It also appears that email communications are incomplete. In addition in a May 27th email, Attorney Moschella indicates that he did not receive other electronic records, such as text, SMS and other forms of electronic messages in response to his request. 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(b)(iv) (written response must “identify 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). Records in existence The Town provided Attorney Moschella with certain of the records responsive to the request; however, Attorney Moschella reported to the Supervisor’s office that the Town did not provide all the responsive records to his 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 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 C.M.R. 32.06(3)(c)(4). Based on the Town’s May 2022 production of records, and in light of Attorney Moschella’s appeal and his May 27th emails to this office regarding the existence of responsive records, I find it is unclear what records the Town still possesses that may be responsive to the request. The Town must use its superior knowledge of the records, and must identify what type of records(s) exist, and are in its possession that are responsive to Attorney Moschella’s request. See G. L. c. 66, § 10(a)(ii), (b)(ii). The Town must clarify this issue. Order Accordingly, the Town is ordered to provide Attorney Moscella with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations

Ms. Catie McClenaghan SPR22/1171 Page 3 May 31, 2022 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: William A. Moschella, Esq.