Paul Burke v. Swansea, Town of - Town Clerk (SPR 20221327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 22, 2022 SPR22/1327 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Paul C. Burke 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 June 2, 2022, Mr. Burke requested “a copy of the legal opinion that [the Town Attorney] gave at the Annual Town Meeting on 5-16-2022 on Article 42 regarding its’s legality.” The Town responded on June 3, 2022. Unsatisfied with the Town’s response, Mr. Burke 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 custodian must provide the responsive 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 SPR22/1327 Page 2 June 22, 2022 Current Appeal In his appeal petition, Mr. Burke contends that “the Town Attorney . . . went to the podium at the Town Meeting and declared the Article [No. 42] was illegal, and he read from a written opinion. This can be clearly seen in the video of the meeting that is on the Town of Swansea Cable Access website.” The Town’s June 3rd Response In its June 3, 2022 response, the Town states that it is not in possession of responsive records. Agency Relationship Please be advised that 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town is further advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Burden of Specificity In order 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). Further, under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 ------------------------------- (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. ------------------------------ 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Diane Pelland SPR22/1327 Page 3 June 22, 2022 In its June 3rd response, the Town states “that the Town is not in possession of any such document, and has never received any copy of any such document.” The Town goes on to state “that any such document as described by [Mr. Burke] would be subject to legal privilege and not producible in any event.” Based on a phone conversation between a staff attorney of the Public Records Division and Town Counsel on June 17, 2022, I understand that the legal opinion given verbally at the Annual Town Meeting, depicted in the video referenced in Mr. Burke’s appeal, was based on hand written notes. Town Counsel further confirmed that no written opinion was provided to the Board of Selectmen on this matter. Based on the forgoing, I find it is unclear whether the Town possesses records responsive to Mr. Burke’s request. Accordingly, the Town must identify any records or types of records that it intends to withhold, and state with specificity any exemption to the Public Records Law being claimed in order to withhold such records. Conclusion Accordingly, the Town is ordered to provide Mr. Burke with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, .I-.· - . , , .-· ·.. ~ Rebecca S. Murray Supervisor of Records cc: Paul C. Burke