Scott E. McGowan v. Lenox, Town of - Town Clerk (SPR 20222597)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2022 SPR22/2597 Kerry L. Sullivan, CMMC Town Clerk Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Scott E. McGowan appealing the response of the Town of Lenox (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. McGowan requested the following records: [1] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the [Town], and the [Town’s] Fire Department, of the [Town’s] Fire Department’s Annual Report to the Board of Selectmen [Board] for the years 2018, 2019, 2020, [and] 2021; [2] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the Town, and the [Town’s] Police Department, of the [Town’s] Police Department’s Annual Report to the [Board] for the years 2018, 2019, 2020 [and] 2021; and [3] Any and all records, whether in electronic, hard copy, or any other format, that are in the possession of the [Town], and the [Town’s] Police Department, of the current collective bargaining agreement and/or employment contract of [the Town’s] Police Chief Stephen E. O’Brien. Mr. McGowan asks the Town to provide an itemized list of all documents that apply to his request. In addition, Mr. McGowan seeks that the records be provided in electronic format when possible. On November 9, 2022, the Town provided Mr. McGowan with a website link to obtain the records responsive to Items 1 and 2. In addition, the Town forwarded Item 3 of Mr. McGowan’s request to Police Chief Stephen E. O’Brien. On November 15, 2022, after not receiving any of the records responsive to Item 3, Mr. McGowan petitioned the Supervisor of Records, and this appeal was opened. 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

Kerry L. Sullivan SPR22/2597 Page 2 November 22, 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). 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). 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. Timeliness in responding/providing records In his appeal, Mr. McGowan states: On November 10, 2022, I emailed Clerk Sullivan asking to clarify the date that I would receive the records. On November 14, 2022, Clerk Sullivan replied in part, “I have to respond within 10 days, which I did, and the custodian of the records has 25 business days to compile the information and get it to [the Town Clerk] so [the Town Clerk] can get it to [Mr. McGowan] within that time frame. As a result of Town Clerk Kerry Sullivan’s November 10th response, Mr. McGowan Petitioned this office. Upon review of the Town’s November 10th response, I find that the Town has asserted a reasonable timeframe to produce responsive records regarding Item 3 of Mr. McGowan’s request. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). With regard to producing the records responsive to Item 3 of Mr. McGowan’s request,

Kerry L. Sullivan SPR22/2597 Page 3 November 22, 2022 this office advises the Town that to the extent possible, the records should be provided on a rolling basis. I encourage the parties to continue to communicate regarding Item 3 in order to satisfy this particular request. Conclusion Accordingly, the Town is ordered to provide Mr. McGowan with a response to his request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kerry Sullivan