Eileen W. Mooney v. Great Barrington, Town of - Office of the Town Clerk (SPR 20231746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2023 SPR23/1746 Jennifer L. Messina Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Ms. Messina: I have received the petition of Eileen Mooney appealing the response of the Town of Great Barrington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 17, 2023, Ms. Mooney requested “all information, including documents, emails, minutes of board meetings and any other records that refer to the classification of property owned by [two identified organizations]. This includes but is not limited to documents, emails, minutes and other records of the Board of Assessors and all employees of the [assessors’] office, including the principal assessor.” On July 21, 2023, Ms. Mooney requested “minutes of the Board of Assessors’ meeting of May 31, 2022, when they denied an application of [a named individual] for a tax abatement or exemption.” The Town responded on July 28, 2023. Unsatisfied with the response, Ms. Mooney petitioned this office and this appeal, SPR23/1746, 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. 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 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

Jennifer L. Messina SPR23/1746 Page 2 August 11, 2023 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. The Town’s July 28th Response In its July 28, 2023 response, the Town states, “[p]er Town Counsel, it is appropriate that these records fall under exemption of the Public Records Law and to deny you your request for records relating to the ATB case on the basis of sections 60 and 52B of Chapter of the General Laws.” Regarding Ms. Mooney’s July 21st request, the Town states, “[a]ttached are the draft minutes from that meeting that were provided by the Principal Assessor.” Current Appeal In her appeal Ms. Mooney states, “[a]lthough I specifically requested documents referring to the change from nonprofit to commercial classification, no information about this was provided.” Ms. Mooney argues that the Town’s statement regarding her July 17th request is not explained. Ms. Mooney also asserts: This is a request that the Public Records Division examine all documents that were considered at the Board of Assessors’ May 31, 2022, meeting and determine whether and why they may legally be withheld. I also request that the Division examine records of the Board of Assessors to provide me with information – such as complete minutes with all information required by the state’s Open Meeting Law – of when and why the property was reclassified from nonprofit to commercial. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town’s response did not contain the specificity required in a denial of access to public records. The Town must identify an exemption and explain the applicability of the exemption to the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Jennifer L. Messina SPR23/1746 Page 3 August 11, 2023 Additionally, based on Ms. Mooney’s appeal, it is unclear if the Town possesses additional records responsive to her 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 additional 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. Mooney with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Eileen Mooney