Christopher Falco v. Rockland, Town of - Town Clerk (SPR 20231104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2023 SPR23/1104 Liza Landy Town Clerk/Records Access Officer Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landy: I have received the petition of Chris Falco 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 May 10, 2023, Mr. Falco requested: “…complete and certified files from the [Town’s] Fire Department with respect to [an identified property address in the Town].” In addition, Mr. Falco asserts, “[w]ithin that request [I] expected to receive Smoke and [C]arbon [M]onoxide detector certificates Certificate of Compliance according to M.G.L. [c. 148 §26f, 26f ½] for all transfers of ownership, which is required. [I] received none. I am again requesting specifically these Certificates of Compliance for all transfers of ownership for the complete history for this property, there will be several.” On May 24, 2023, the Town provided Mr. Falco with a response to his request, indicating, “[t]here are no records in our possession that are responsive to your request.” As a result of the Town’s May 24th response, Mr. Falco petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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 Landy SPR23/1104 Page 2 June 7, 2023 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). Current appeal In his May 24th petition, Mr. Falco asserts, “[t]he issue here in the appeal that the documents had to have existed. In fact, you cannot transfer property ownership without the documents I am requesting.” Further, Mr. Falco contends that the Town must have destroyed the records without authorization. In light of the issues raised in Mr. Falco’s petition, the Town must clarify whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, the Town must explain in writing whether it complied with the Public Records Law and the Municipal Records Retention Schedule (Schedule) if it destroyed the records. See G. L. c. 66, § 10(a)(i). Conclusion Accordingly, the Town is ordered to provide Mr. Falco 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: Chris Falco