Pamela Keith v. Marshfield, Town of - (SPR 20231474)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2023 SPR23/1474 Nancy Porreca Record Access Officer Zoning Board of Appeals Department Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Ms. Porreca: I have received the petition of Pamela Keith appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2023, Ms. Keith requested: [A]ll documents, including emails and [an identified individual’s] advise/ memorandum to the Board, that were submitted to the Zoning/ZBA Office for [an identified case] that was discussed by the Board on September 28, 2021. Please also provide to me all documents given to or sent by the Office, that pertain to this case and were created after this case was closed, including emails and any written Decision and/or Permit, whether filed with the Town Clerk or not. On March 29, 2023, the Town responded. Unsatisfied with the Town’s response, Ms. Keith petitioned this office and this appeal, SPR23/1474, was opened as a result. 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

Nancy Porreca SPR23/1474 Page 2 July 10, 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. The Town’s March 29th Response In its March 29, 2023 response, the Town provided two responsive documents to Ms. Keith. Current Appeal In her appeal, Ms. Keith asserts: Although I received a partial response, I was made aware of an existing document I did not receive. Also, I believe there may be emails that were sent to and from the Zoning Aide or Zoning Enforcement Officer that pertain to the case in question, and I received no emails. Based on the Town’s response, in conjunction with Ms. Keith’s appeal, it is unclear if the Town possesses additional 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). To the extent that records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Town is ordered to provide Ms. Keith with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Pamela Keith