Geraldine Mullaly v. Swansea, Town of - Town Clerk (SPR 20232063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2063 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 29, 2023, Ms. Mullaly stated that “[i]n light of the expenditures by/reimbursement to CHA Consulting, Inc reflected in its 2024 Vendor History, I am requesting the following: [1.] 2024 Condition of Accounts for OPM-DESIGN MUNICIPAL COMPLEX BUIL; [2.] 2024 Condition of Accounts for HIGHWAY BUILDING DESIGN; and [3.] Invoices for each $5,000 expenditure with specific details of services rendered/per service cost.” The Town provided a response on August 29, 2023. Unsatisfied with the response, Ms. Mullaly petitioned this office and this appeal, SPR23/2063, 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 town 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 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

Diane Pelland SPR23/2063 Page 2 September 12, 2023 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). The Town’s August 29th response On August 29, 2023, the Town stated, “I will not be responding to these requests by piece mail. I am also starting to record the amount of time it takes to respond and you will be charged for the time that is involved in retrieving said requested information.” Current Appeal In her appeal, Ms. Mullaly states, “I am appealing [the Town’s] refusal to fulfill my attached Public Records request as no charge was stipulated as a condition of fulfillment at the time said request was made.” Based on the Town’s response, in conjunction with Ms. Mullaly’s appeal, it is unclear if the Town possesses 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. Mullaly 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: Geraldine Mullaly