Andrew Quemere v. Billerica, Town of - Town Clerk (SPR 20230907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2023 SPR23/0907 Donna McCoy Town Clerk Town of Billerica 365 Boston Road, Office 207 Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Andrew Quemere appealing the response of the Town of Billerica (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 24, 2023, Mr. Quemere requested the following: [1.] All contracts with John Guilfoil and/or John Guilfoil Public Relations LLC [2.] All records documenting financial obligations and/or financial transactions with John Guilfoil and/or John Guilfoil Public Relations [3.] All emails related to the April 19, 2023, incident in which a police officer was allegedly exposed to the drug fentanyl. The Town responded on April 27, 2023, providing responsive records. Unsatisfied with the Town’s response, and claiming the Town possesses additional responsive records, Mr. Quemere appealed, and this case was opened as a result. While this appeal was pending, the Town provided a supplemental response to Mr. Quemere and this office on May 4, 2023. 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); 950 C.M.R. 32.06(3); see also Dist. 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

Donna McCoy SPR23/0907 Page 2 May 17, 2023 Att’y 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 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. Current Appeal In his appeal petition, Mr. Quemere contends that “the city only provided communications between the city and John Guilfoil Public Relations and did not explain whether there are additional responsive communications that it is withholding.” In an email to this office and the Town on May 4, 2023, Mr. Quemere further contends that “even if John Guilfoil Public Relations is a private company, these communications were ... sent on behalf of the department. Therefore these communications are subject to disclosure under the public records law.” The Town’s April 27th and May 4th Responses In its April 27, 2023 response, the Town provides numerous responsive records. In its May 4, 2023 response, the Town confirms that it does not possess additional records relating to contracts and financial transactions with the public relations firm in question. Agency Relationship With regard to the “incident in which a police officer was allegedly exposed to the drug fentanyl,” in its May 4th response, the Town states that “as JGPR is [the Police Department’s] public relations firm, they handled all media inquiries related to the incident in question, including emails from media firms.” Please be 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 ------------------------------ Mass. 281, 289-90 (1979). The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty

Donna McCoy SPR23/0907 Page 3 May 17, 2023 to make the public records available in a location convenient to the general public for inspection and copying. In this case, where a public relations firm acted as an agent on behalf of the Town, it is unclear whether the records for the Town’s agents were searched. As such, I find that the Town must provide additional information detailing their search in order to determine if the Town has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the Town is ordered to provide Mr. Quemere with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Andrew Quemere