Barry Kraft v. Swampscott, Town of - Town Clerk (SPR 20231879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2023 SPR23/1879 Jared H. LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: I have received the petition of Barry Kraft appealing the response of the Town of Swampscott (Town) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2023, Mr. Kraft requested the following records: [1]. Any emails to any member of the select board, including replies to such email, and specifically the email address of . . . redacted, to not include any personal information, which requests for additional parking or complaints about lack of parking, or correspondence from residents who may be affected by Recreation permit parking signage. [2]. All minutes from the TSAC, the traffic advisory commissions for the year 2023. There are no public records on the town website of these meetings for the entire year. To comply with this request, simply tell me that you have posted these minutes on the website, as required. The Town provided a response on July 17, 2023, which included a fee estimate for Item 1 of the request. On July 20, 2023, Mr. Kraft withdrew his request for records related to Item 1 of the request. The Town provided an additional response regarding Item 2 of the request on August 9, 2023. Unsatisfied with the Town’s August 9th response, Mr. Kraft petitioned this office and this appeal, SPR23/1879, 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 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

Jared H. LaLiberte SPR23/1879 Page 2 August 25, 2023 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. Attorney 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 July 17th and August 9th responses In its July 17th response, the Town stated the following: IT staff said that there is no real difference between searching just the general email and the specific emails because that email just accepts messages and distributes them to the five email addresses of the Board Members. Due to staffing constraints if you wish to proceed with the request, we will need the additional 15 days allowed under MGL to complete this request. In response, Mr. Kraft asked, “[w]hen can we expect the Traffic Committee minutes to be posted and available?” The Town responded by stating that “…that will be completed in the same timeframe.” On July 20, 2023, Mr. Kraft emailed the Town and informed them that “[w]e will not be proceeding with the request for emails. I would like notification when the traffic committee minutes are posted.” On August 9, 2023, the Town stated the following: [T]hey have posted all of the 2022 minutes that they were missing but they are still working on the ones for this year. As of right now the ones that are required but have not been done are the first two of this year, as the Open Meeting Law requires them to have them done within three meetings from the time they met. So, as of right now we do not have records responsive. Timeframe for responding to a request 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

Jared H. LaLiberte SPR23/1879 Page 3 August 25, 2023 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). Where Mr. Kraft’s request was submitted on July 3, 2023 and where the additional 15 days the Town asked for to complete the request has expired, I find the 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 responsive 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 Mr. Kraft 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. Mr. Kraft may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Barry Kraft