Dawn Padovani v. Carver, Town of - Town Clerk (SPR 20232507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2023 SPR23/2507 Michelle Sheehan Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Dawn Padovani appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2023, Ms. Padovani requested “…a post put out by the cook of the Carver Council on Aging ... on the Carver Council on Aging social media Facebook page on August 2, 2023.” Previous appeal This request was the subject of a previous appeal. See SPR23/1901 Determination of the Supervisor of Records (August 29, 2023). In the August 29th determination, I ordered the Town to explain whether it destroyed the requested records. The Town provided a response on September 28, 2023. Unsatisfied with the Town’s response, Ms. Padovani petitioned this office and this appeal, SPR23/2507, 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

Michelle Sheehan SPR23/2507 Page 2 November 6, 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). 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 September 28th response In its September 28, 2023 response, the Town explained that “the individual did trace her individual Facebook ‘post & comment’ history all the way back to 2012, however, the comment at issue was not available in the individual’s history.” The Town also clarified that “[t]he Administrator of the Council on Aging Facebook page did not destroy the comment post at issue.” Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the Town’s response, it remains unclear whether the record no longer exists. 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Padovani with a response to the request, in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Dawn Padovani