Margaret Sheehan v. Carver, Town of - Town Clerk (SPR 20221800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2022 SPR22/1800 Cara Dahill Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Meg Sheehan, Esq., appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2022, Attorney Sheehan requested numerous records regarding named earth removal projects. On July 14, 2022, the Town responded and provided a further response on August 2, 2022. Unsatisfied with the Town’s responses, Attorney Sheehan petitioned this office and this appeal, SPR22/1800, 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. 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. Current Appeal In her appeal petition, Attorney Sheehan claimed that the Town failed to produce all 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

Cara Dahill SPR22/1800 Page 2 August 17, 2022 The Town’s responses In the Town’s initial July 14th response, the Town provided responsive records. In a further response on August 2, 2022, the Town provided additional responsive records and stated, “… [w]e gave what we had prior to this but have no truck logs, check copies maps etc.” It is my understanding a staff attorney of the Public Records Division discussed Attorney Sheehan’s appeal with the Town, and the Town confirmed it does not possess additional records responsive to the request. Further, in email dated August 16, 2022, the Town indicated that Attorney Sheehan should direct her request to the Earth Removal Committee as they are in possession of the records she is seeking. 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). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). Conclusion Accordingly, Attorney Sheehan may wish to submit a new request to the Earth Removal Committee for the records she is seeking. Where the Town confirmed they do not possess additional responsive records, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Meg Sheehan, Esq.