Karen Herrick v. Reading, Town of - Town Clerk (SPR 20232349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2349 Laura A. Gemme, CMC/CMMC Town Clerk Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: I have received the petition of Karen Herrick, Secretary of the Reading Select Board, appealing the response of the Town of Reading (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2023, Ms. Herrick sent the following email to the Town Clerk stating, “[b]oth the IRS and the Atty General say they are 2 years and 5 months (respectively) behind in updating their on-line records. Could you please ask the Reading Ice Arena Authority to share a copy of the 2022 990 form that they filed?” The Town provided a response on October 3, 2023, asserting, “I am told the 2022 990 form went to the [Attorney General on] 5/15/2023 and is available for public viewing upon request. You can stop in at the ice arena and request to see the form.” As a result of the Town’s response, Ms. Herrick petitioned the Supervisor of Records, and this appeal was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Laura A. Gemme SPR23/2349 Page 2 October 16, 2023 to withhold, and provide the specific reasons for such withholding, including the specific 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). 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. Current Appeal In Ms. Herrick’s October 3rd petition for this appeal, she states: I have been unable to access the Reading Ice Arena Authority’s most recent 990 from either the [Attorney General] or the IRS due to their self-admitted posting delays. I have consulted with my pubic records officer - submitted the request to the Town on September 19th and below is what I received today [October 3rd]. I am able bodied and it is possible that I can drive to the physical location and get a copy as suggested - however – it also could have been attached to the reply. I am filing an appeal of the response to my request from the Reading Ice Arena Authority in order for all of us here in Reading to understand what must be disclosed and by what method. The Reading Ice Arena Authority (RIAA) is a 501c3 that has a lease to operate the [Town-owned] ice arena. It would be very helpful if you could clarify the Town’s and the RIAA’s disclosure and [Public Records Law] responsibilities, RIAA EIN: 22-3186247. Based upon an October 4th conversation between a Public Records Division attorney and a Town representative, the Town indicated that it does not possess a copy of the requested 990 Form filed with the Attorney General’s Office. Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Whenever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the Town’s response, it is uncertain whether the lease agreement between the Town and RIAA entitles the Town to request or obtain the record requested by Ms. Herrick.

Laura A. Gemme SPR23/2349 Page 3 October 16, 2023 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). I find the Town must provide additional information regarding this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Herrick with a response to her request 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. Ms. Herrick 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: Karen Herrick