John R. Ward v. Rockland, Town of - Town Clerk (SPR 20230448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2023 SPR23/0448 Liza J. Landy Town Clerk/Records Access Officer Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landy: I have received the petition of John Ward appealing the response of the Town of Rockland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2023, Mr. Ward stated, “[i]n regard to the recently settled case of Chiocca vs. Town of Rockland, would you be kind enough to answer some questions? [1] What are the total costs the [T]own incurred (legal, investigations, etc.) from May 18, 2018 and December 31, 2022? [2] Will the [T]own be reimbursed for those costs by the insurance company? [3] According to the judicial summary, Attorney John Clifford advised the [Town’s] Board of Selectmen to follow the terms of Mr. Chiocca’s contract and the [T]own [C]harter. On what date did Attorney Clifford give that advice to the [S]electmen?” On February 1, 2023, the Town acknowledged Mr. Ward’s request, indicating, “…may this note acknowledge that I have received your email and that Chairman O’Loughlin will respond on behalf of the Select Board.” In a February 3, 2023 email to the Town Clerk, Mr. Ward asked for further information stating, “[c]oncerning the case of Allan Chiocca, the [Town’s] Board of Selectman spent public funds to engage attorneys and pay for other costs. The public is entitled to know how their tax dollars have been spent. I am not requesting documents from or the terms of the insurance settlement in this email. I do have some questions: [1] In regard to the Chiocca case alone, what are the total costs the [T]own incurred (legal, investigations, etc.) from May 1, 2018 to December 31, 2022 that were not covered by the insurance settlement? 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

Liza J. Landy SPR23/0448 Page 2 March 21, 2023 [2] Who are the attorneys that represented the [T]own in this case? [3] Did Attorney John Clifford represent the [T]own for the entirety of the case? If not, what part of the case did he cover?” On February 6, 2023, the Town provided a response to Mr. Ward’s February 3rd request, asserting, “[a]s the Public Records Law only applies to records, the Town is not required by the Public Records Law to answer questions or create a record in response to a request.” On February 22, 2023, Mr. Ward made another request, “[i]n regard to the case of Chiocca vs. The Town of Rockland, I am requesting the fiscal year-end financial detail amounts for the period of time as noted for all legal costs including payments to law firms and investigators by the respective vendors for fiscal year 2018 through fiscal year 2023.” On March 2, 2023, the Town provided Mr. Ward with a response stating, “[t]here are no responsive records to your request(s) as the Town does not have fiscal year end reports separated by litigation/legal matter(s) and the Public Records Law does not require the Town to create a record in response to a request.” As a result of the Town’s March 2nd response, Mr. Ward petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The Public Records 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. Mr. Ward is advised that 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). However, under the Public Records Law, a public

Liza J. Landy SPR23/0448 Page 3 March 21, 2023 employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. Ward submitted a list of questions to the Town, I find the Town has no duty under the Public Records Law to answer such questions. However, based on the Town’s March 2nd response that it does not have fiscal year end reports separated by litigation/legal matter(s), it is unclear whether the Town is in possession of legal bills and payments made by the Town for legal costs. The Town should clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Ward 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: John Ward