Frank Miller v. Holbrook, Town of - Town Clerk (SPR 20222788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2022 SPR22/2788 Jeanmarie Tarara Town Clerk Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Ms. Tarara: I have received the petition of Frank Miller appealing the response of the Town of Holbrook (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 2, 2022, Mr. Miller requested the following records: [1] Work from home policy; [2] Approval for [an identified person] to work from home or while traveling; [3] Time sheet for [an identified person] for March 2022 – October 2022; [4] Correspondence (e-mail, text, written, etc.) between [two identified persons] regarding Plymouth County as it relates to [the Town]. [5] Correspondence (e-mail, text, written, etc.) between [two identified persons] during the time period of 6/1/22 and 6/30/22; [6] Correspondence (e-mail, text, written, etc.) between any Town employees or elected officials regarding the incident of [an identified person’s] altercation at [an identified location] in June 2022. On November 8, 2022, the Town provided a response, asserting, “[t]he Town does not have any documents that we can locate that are responsive to your request.” As a result of the Town’s November 8th response, Mr. Miller petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The basis of Mr. Miller’s appeal is that he believes that the Town does have records responsive to his Requests 3, 5 and 6. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Jeanmarie Tarara SPR22/2788 Page 2 December 19, 2022 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. In an email correspondence on December 6, 2022, between a senior attorney in the Public Records Division and the Town Clerk, it is my understanding that the request and appeal file was forwarded to Gregory Hanley, the Town Administrator for a further response to Mr. Miller. To date, it is unclear whether the Town has done so. Search for the Responsive Records; Records that Exist The Town’s November 8th response asserts, “[t]he Town does not have any documents that we can locate that are responsive to [Mr. Miller’s] request.” Please be advised, the Town must use its superior knowledge of the records to provide Mr. Miller with any existing records that are in its possession, custody or control regarding Mr. Miller’s request. See 950 C.M.R. 32.04(5). It remains unclear whether the Town conducted a diligent search for any records responsive to Mr. Miller’s November 2nd request. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Miller 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.

Jeanmarie Tarara SPR22/2788 Page 3 December 19, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Frank Miller