Mass Free Press v. Wareham, Town of - Town Clerk (SPR 20222549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2022 SPR22/2549 Michele Bissonnette Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Mass Free Press appealing the response of the Town of Wareham to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 11, 2022, Mass Free Press requested, “[a]ll Town policy for the Wareham Police [and] all public funded workers for Wareham.” Prior Appeal This request was the subject of a previous appeal. See SPR22/2439 Determination of the Supervisor of Records (November 8, 2022). The Town responded on October 29, 2022. Unsatisfied with the response, Mass Free Press petitioned this office, and appeal SPR22/2549 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(d)(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 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

Michele Bissonnette SPR22/2549 Page 2 November 18, 2022 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). 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. The Town’s October 29th Response In its October 29, 2022 response, the Town provided a variety of records. Current appeal In an email dated November 8, 2022, Mass Free Press states that, “[n]othing in these records has anything to do with the request for policy and procedures… I am appealing the response to get the Wareham police department policy and procedures that are public record.” Upon review of the file and the appeal, it is unclear if the Town possesses additional records that may be responsive to his request. Specificcally, the Town must clarify whether it possesses policies and precedures of the Police Department that may be responsive to the 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 the extent that additional records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Mass Free Press with a response to the request, provided in a manner consistent with this order, the Public Records Law and its 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, Manza Arthur Supervisor of Records cc: Mass Free Press