Barry S. Cosgrove v. Wareham, Town of - Town Clerk (SPR 20222723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2022 SPR22/2723 Michele Bissonnette Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Barry S. Cosgrove appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 31, 2022, Mr. Cosgrove requested: [1] All records in connection with the engagement of an independent engineer/firm to evaluate earth removal activity in Wareham in compliance with the Wareham Board of Selectmen’s instruction and the related 2021 Wareham Fall Warrant Article petition regarding same…[;] [2] All records by, from, and to A.D.M…concerning earth removal in Wareham…[;] [3] All records by, from any other person or entity…concerning earth removal in Wareham…[.] Prior Appeal This request was the subject of a previous appeal. See SPR22/2350 Determination of the Supervisor of Records (November 1, 2022). The Town responded on October 27, 2022. Unsatisfied with the response, Mr. Cosgrove petitioned this office, and appeal SPR22/2723 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, § l0A(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 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 SPR22/2723 Page 2 December 5, 2022 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. 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 27th Response In its October 27, 2022 response, the Town stated, “I anticipate being able to complete this by Wednesday, November 2nd...” The Town subsequently provided physical copies of the documents to Mr. Cosgrove. Current Appeal In his appeal, Mr. Cosgrove states “…regrettably there remain documents which the Town of Wareham acknowledges are (i) responsive to the subject Public Records Request, and (ii) in its possession.” Subsequently on November 28, 2022, Mr. Cosgrove advised that he received approximately 1000 pages and stated that “approximately 40% of these pages were blank sheets of paper….” In light of the claims made by Mr. Cosgrove, it is unclear if the Town possesses additional records that may be responsive to his request. Specifically, the Town must clarify whether it possesses further responsive documents. 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 Mr. Cosgrove with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this

Michele Bissonnette SPR22/2723 Page 3 December 5, 2022 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: Barry S. Cosgrove