Kimberly Kenney v. Pembroke, Town of - Office of the Town Manager (SPR 20230476)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 23, 2023 SPR23/0476 William Chenard Town Manager Town of Pembroke 100 Center Street Pembroke, MA 02359 Dear Mr. Chenard: I have received the petition of Kimberly Kenney appealing the response of the Town of Pembroke (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2023, Ms. Kenney requested “[a]ttendance records for the Town Clerk, Margaret Struzik for the period beginning November 14, 2022 through to November 25, 2022.” On February 24, 2023, Ms. Kenney modified her request for the following records: All documentation, including attendance records, time off requests, payroll information for the Town Clerk- Margaret Struzik for a period from November 14, 2022 to November 25, 2022. The Town responded on March 8, 2023 and March 16, 2023. Unsatisfied with the responses, Ms. Kenney petitioned this office and this appeal, SPR23/0476 was opened as a result. It appears Ms. Kenney’s appeal is limited to the requested attendance records. 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(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

William Chenard SPR23/0476 Page 2 March 23, 2023 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. The Town’s March 8th and March 16th responses In its March 8, 2023 response, the Town advised that, “... there are no records responsive to the request for attendance records or time off requests.” The Town further opined, [i]n response to your request for payroll information, attached please find the weekly payroll submissions from the Town Clerk’s office, one for week ending November 19, 2022 and the other for week ending 11/26/2022, as well as the report of payroll history for Margaret Struzik for the requested (week ending) dates...” In the Town’s March 16, 2023 response, the Town opined, “[t]he Town has wholly satisfied its obligations under the Public Records Law with respect to Ms. Kenny’s public records request” as follows: 1. With respect to Ms. Kenny’s initial request for “attendance records,” the Town’s February 22, 2023 response clearly stated that the Town had “conducted a diligent search” and determined that it did not have records responsive to your request; 2. With respect to Ms. Kenny’s resubmitted request for “time off requests,” the Town responded that it was not in possession of any records responsive to that request. 3. Finally, with respect to Ms. Kenny’s resubmitted request for “payroll information,” the Town’s March 8, 2023 response to Ms. Kenny’s resubmitted request provided records responsive to that request. Current appeal In her appeal, Ms. Kenney states, “I want the Town of Pembroke to provide proof of Struzik’s attendance in the town hall in her official capacity on the dates requested.” Based on the Town’s responses and Ms. Kenney’s appeal, it is unclear if the Town possesses any attendance records 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). 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). Consequently, the Town must

William Chenard SPR23/0476 Page 3 March 23, 2023 clarify whether responsive records exist. Conclusion Accordingly, the Town is ordered to provide Ms. Kenney with a response to her 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: Kimberly Kenney Connor A. Mullen, Esq.