Allison Sloan v. Middleton, Town of - Town Clerk (SPR 20232317)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2317 Ilene B. Twiss Town Clerk Town of Middleton 48 South Main Street Middleton, MA 01949 Dear Ms. Twiss: I have received the petition of Allison Sloan, appealing the response of the Town of Middleton (Town) to her request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2023, Ms. Sloan requested “…a copy of the Town Counsel reply to the Board of Library Trustees’ request for review of the 5/8/2023 draft policy #44 Workplace Civility Policy” as well as “…a copy of the email or written correspondence response from [a specified law firm].” The Town provided a response on September 25, 2023. Unsatisfied with the response, Ms. Sloan petitioned this office and this appeal, SPR23/2317, 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. 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. 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

Ilene B. Twiss SPR23/2317 Page 2 October 13, 2023 Current appeal In her appeal, Ms. Sloan states that she “find[s] the reply is missing emails or documents.” The Town’s September 25th response In its September 25, 2023 response, the Town provided Ms. Sloan with emails responsive to her request. Unclear if additional records exist Although the Town provided Ms. Sloan with responsive records, based on her appeal, it is unclear if the Town possesses additional records that may be 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Ms. Sloan 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Allison Sloan