Elizabeth Chong v. South Hadley, Town of - Town Clerk (SPR 20222765)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2022 SPR22/2765 Sarah B. Gmeiner Town Clerk Town of South Hadley 116 Main Street, Room 108 South Hadley, MA 01075 Dear Ms. Gmeiner: I have received the petition of Elizabeth Chong appealing the response of the Town of South Hadley (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2022, Ms. Chong requested email correspondences from two South Hadley employees regarding a specific individual. The Town provided a response on November 23, 2022. Unsatisfied with the response, Ms. Chong petitioned this office and this appeal, SPR22/2765, 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 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). 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

Sarah B. Gmeiner SPR22/2765 Page 2 December 15, 2022 The Town’s November 23rd response In its November 23, 2022 response, the Town stated “[a]ttached, please find the Town of South Hadley’s response to the above-captioned public records request.” Current Appeal In Ms. Chong’s current appeal, she stated that in the Town’s November 23, 2022 response, only email correspondences from one of the South Hadley employees were included. Ms. Chong stated that she reached out to the Town to inquire as to why the additional records were not included but received no response. Records in existence 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the above, it is unclear if the Town possesses the above specified email correspondences. The Town must clarify this matter. As a result, I find that the Town did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Town is ordered to provide Ms. Chong 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. Ms. Chong may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Chong