Margaret E. Sheehan, Esq. v. Plymouth, Town of (SPR 20232367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2023 SPR23/2367 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Margaret E. Sheehan, Esq., of the Community Land & Water Coalition, appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2023, Attorney Sheehan requested the following records pertaining to an agreement between the Town and American Cruise Lines, Inc.: [1] All records relating or referring to the 30 Town Wharf Lease, including but not limited to final minutes of the Selectboard Executive Session of October 18, 2022, and all other executive sessions discussing this topic, including emails, phone notes and communications among and between Selectboard members and any town employees and the lessee, the final lease and all drafts and revisions to the lease. [2] The minutes of the executive session of the Selectboard meeting of Tuesday October 18, 2022. [3] All records relating or referring to the “American Cruise Line Agreement” identified on the Selectboard agenda including emails, phone notes and all communications regarding the agreement, and the draft and final agreement and minutes of the Selectboard relating to the agreement. Prior Appeals This request was the subject of a previous appeal. See SPR23/2190 Determination of the Supervisor of Records (September 20, 2023) and SPR23/2238 Determination of the Supervisor of Records (October 4, 2023). In my October 4th determination, I declined to opine on the matter regarding the executive session minutes, and found that it was unclear whether the Town possessed additional records. The Town provided a response on October 4, 2023. Unsatisfied 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

Connor Anderson SPR23/2367 Page 2 October 18, 2023 with the Town’s response, Ms. Sheehan petitioned this office and this appeal, SPR23/2367, 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(d)(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…”); 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. The Town’s October 4th Response In its October 4, 2023 response, the Town sent previously provided records and stated, “[t]he attached e-mail and the documents within the PDF were provided on September 20, 2023.” Current appeal In her appeal, Attorney Sheehan stated, “[the Town’s] email simply states that the same documents provided on Sept. 14 were provided again on Sept. 20. There were no emails, phone notes or other correspondence in those records…” In light of Ms. Sheehan’s appeal, and as stated in the October 4th determination, it is unclear if the Town possesses additional records that may be responsive to the request. Specifically, the Town must confirm whether it possesses “emails, phone notes or other correspondence. . .” 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 responsive records exist, I find the Town must provide them in a manner consistent with the Public Records

Connor Anderson SPR23/2367 Page 3 October 18, 2023 Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Attorney Sheehan 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: Margaret E. Sheehan, Esq.