Michelle Loubert v. Great Barrington, Town of - Office of the Town Clerk (SPR 20232417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2023 SPR23/2417 Jennifer L. Messina Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Ms. Messina: I have received the petition of Michelle Loubert appealing the response of the Town of Great Barrington (Town) to her request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2023, Ms. Loubert requested a copy of a specific state law “referenced at the 9/11 and 9/18/23 Select Board meetings.” The Town provided a response on October 2, 2023. Unsatisfied with the response, Ms. Loubert petitioned this office and this appeal, SPR23/2417, 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. Current appeal In her appeal, Ms. Loubert states that “…the response is (1) incomplete (2) contains 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

Jennifer L. Messina SPR23/2417 Page 2 October 25, 2023 erroneous information not germane to [her] public records request and (3) the document(s) requested were not provided.” The Town’s October 2nd response In its October 2, 2023 response, the Town provided Ms. Loubert with a letter she had previously submitted to the police chief, as well as an email exchange between various Town officials. Unclear if additional records exist Based on the Town’s response and Ms. Loubert’s appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, the Town must clarify if it possesses a copy of “the state law referenced at the 9/11 and 9/18/23 Selectboard meetings” described in Ms. Loubert’s 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. Loubert 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: Michelle Loubert