Caroline E. Smith v. Wareham, Town of (SPR 20230129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2023 SPR23/0129 Michele Bissonnette Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Caroline Smith 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 December 2, 2022, Ms. Smith requested various records relating to the Swift Beach Sewer Project. Following several communications between the parties, the Town provided responses to the initial request on December 22, 28, and 29, 2022 and January 3, 2023. On January 10, 2023, Ms. Smith clarified and narrowed the timeframe of the request. Subsequently, the Town responded on January 17, 2023, providing additional records. Unsatisfied with the responses, Ms. Smith petitioned this office and this appeal, SPR23/0129, 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 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 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 SPR23/0129 Page 2 February 3, 2023 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 December and January Responses In its December 22, 2022 response, the Town provided a bill for pipe replacement. On December 28, 2022, the Town provided warrant articles. On December 29, 2022, the Town provided sewer commissioner minutes and a warrant article. On January 3, 2023, the Town provided sewer commissioner minutes. On January 10, 2023, the Town provided plans for the project and more sewer commissioner minutes. On January 17, 2023, the Town provided project plans. Current appeal In her appeal, Ms. Smith states, “[w]e requested a map or diagram showing which residences would be affected. We requested documents related to the funding of the project…” Additionally, Ms. Smith states that she has not received records responsive to her January 10, 2023 correspondence which provided clarification to the records she requested. In light of the above, it is unclear if the Town possesses additional records 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 responsive 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Smith 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 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: Caroline Smith