Anne L. Gero v. Hamilton Town Manager (SPR 20221391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29, 2022 SPR22/1391 Joseph Domelowicz Town Manager Town of Hamilton 577 Bay Road Hamilton, MA 01982 Dear Mr. Domelowicz: I have received the petition of Anne Gero, Esq. appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2022, Attorney Gero requested, “… copies of the following records pertaining to Casella Waste Management: 1. … spreadsheets showing … calculations of the monthly ACR … [and] the per ton rebate charge/rebate to the Town … for its recycling for the months of December 2020 through January 2022 2. … invoices for services rendered to the Town for November 2021 through January 2022 3. ... tonage report for the month of January 2022. Previous appeals This request was the subject of previous appeals. See SPR22/0408 Determination of the Supervisor of Records (March 4, 2022) and SPR22/0523 Determination of the Supervisor of Records (March 18, 2022). The Town responded on March 30, 2022. Unsatisfied with the response, Attorney Gero petitioned this office and this appeal, SPR22/1391, was opened as a result. Subsequently, I learned that the Town provided a further response on June 21, 2022. 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). 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

Joseph Domelowicz SPR22/1391 Page 2 June 29, 2022 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. Attorney 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. The Town’s March 30th Response In its March 30th response, the Town cites Exemption (g) to redact the requested records. In camera inspection In order to facilitate a determination as to the applicability of the Town’s claims to redact the requested records, the Town must provide this office an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office the requested records for in camera inspection without delay.

Joseph Domelowicz SPR22/1391 Page 3 June 29, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Anne Gero, Esq. Thomas W. McEnaney, Esq.