Margaret Sheehan v. Plymouth, Town of (SPR 20231026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2023 SPR23/1026 Connor Anderson Archivist/Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Meg Sheehan, Esq. of the Community Land & Water Coalition (CLWC) appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On Sunday, April 28, 2023, Attorney Sheehan requested: “[1] Executive Session Minutes of the Selectboard meetings of April 18, 2023 and April 25, 2023 with regard to the Agenda Item, 158 Center Hill Road lease, NOTE: The purpose of the executive session has been served and the minutes, preparatory materials and documents and exhibits of the session must be disclosed. There is no exemption that warrants withholding them. Selectboard Chair Cavaco’s April 24, 2023 letter about the executive session topic has been posted on social media so there can be no legitimate claim that the alleged purpose of the executive session is being served by withholding the records; [2] All drafts and final versions of the April 24, 2023 letter; [3] All communications, including emails, among and between Town employees, the Selectboard and members of the public relating or referring to the Letter; [4] All communications between Selectboard member Cavacco and any Town employee relating or referring to Margaret (Meg) Sheehan; [5] All legal bills relating to referring to the Letter and the lease of 158 Center Hill Road for the period from January 1, 2023 to present; and, [6] All time sheets or records relating or referring to time spent by Town employees discussing the Letter or drafting or researching the Letter.” 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

Connor Anderson SPR23/1026 Page 2 May 30, 2023 Fee Waiver In addition in Attorney Sheehan’s April 28th request, she requests a fee waiver due to CLWC being, “…a non-profit, CLWC serves the public by collecting and disseminating information regarding the health, well-being and protection of land and water resources, including the globally rare Pine Barrens ecosystems and the Plymouth Carver Sole Source Aquifer.” Attorney Sheehan is advised that while a record custodian may waive applicable fees, the Supervisor has no authority to order that a record custodian do so. The Town’s May 1, 2023 Response On May 1, 2023, the Town provided an initial response, acknowledging Attorney Sheehan’s request. In its May 1st response, the Town states: “….[t]his record is being assigned to appropriate department. The department reviewer will review the request and create an effort estimate to create the response. Per state mandate, for [the Town], if the effort estimate is more than 2 hours, we will create a proposed cost estimate and will email such estimate to your attention. Once you approve the amount and send the payment, we will start working on your request. In case the estimate is less than 2 hours, we will proceed to work on the response and will send you the response once the work is completed. Please also note that state mandate allows us to complete and send the response within 10 business days. We will do our due diligence towards this effort. However, the due date may be extended…” The Town’s May 12, 2023 Response In the Town’s May 12th response, it states, “[w]e are extending the response date because I am currently on [personal leave]…I am doing my best to respond to each request I have received within 10 business day, but, in general, requests across the board are taking longer to respond to than normal.” In addition, the Town’s response indicates, “…[the] best estimate is that we will have [the records] for [Attorney Sheehan] before Memorial Day. Any concerns regarding the Open Meeting Law should be directed to the [Select] Board.” As a result of the Town’s May 12th response extending the deadline to produce the records, Attorney Sheehan petitioned the Supervisor of Records (Supervisor) on May 15th, and this appeal was opened. In her May 15th petition, Attorney Sheehan asserts, “[i]t is the obligation of Town leadership to ensure proper staffing for the position and not expect [the employee] to do the job…while on leave…” Further, Ms. Sheehan asserts, “[t]he Town leadership’s failure to fill the position in the meantime should not impair access to records.”

Connor Anderson SPR23/1026 Page 3 May 30, 2023 Attorney Sheehan states, “[p]etitioners are willing to extend the date for Items 3-6 to accommodate the Town. However, Petitioner requests Items 1 and 2 within the next few business days.” 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 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. Timeframe for Producing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Connor Anderson SPR23/1026 Page 4 May 30, 2023 After this appeal was opened, in a May 16th email, the Town informed a Senior Attorney on my staff, “[n]o records have been provided at this time. All the information has been gathered…but our counsel is still in the process of reviewing the requested material for redactions…” To date, and to the best of my knowledge, it is unclear whether the Town has provided a further response, including any fee estimate to Attorney Sheehan. I encourage the parties to continue to communicate to provide the records requested. Whereas Attorney Sheehan’s request was submitted on April 28, 2023, and the Town has not provided responsive records pertaining to those referenced above, I find Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide a response to the request in compliance with 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. If issues remain once Attorney Sheehan receives the response, she may file an appeal within ninety (90) calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Meg Sheehan, Esq., Community Land and Water Coalition