Kenneth Carangelo v. Nahant, Town of - Town Clerk (SPR 20232520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2023 SPR23/2520 Diane M. Dunfee Town Clerk Town of Nahant 334 Nahant Road Nahant, MA 02114 Dear Ms. Dunfee: I have received the petition of Kenneth Carangelo appealing the response of the Town of Nahant (Town) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2023, Mr. Carangelo requested “a copy of the Housing Plan Advisory Subcommittee’s ‘Housing Production Plan’ which was discussed in open meetings on or about October 5, 2023” as well as “to what Board(s) or Committee(s) it has been submitted.” The Town provided a response on October 20, 2023. Unsatisfied with the response, Mr. Carangelo petitioned this office and this appeal, SPR23/2520, 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

Diane M. Dunfee SPR23/2520 Page 2 November 6, 2023 Current appeal In his appeal, Mr. Carangelo states that he “requested the Plan document and was summarily denied.” The Town’s October 20th response In its October 20, 2023 response, the Town stated that “[t]he final Housing Production Plan will be available to the public in early November after it has been adopted by the Board of Selectmen and the Planning Board.” In this case, the Town’s response did not contain the specificity required in a denial of access to public records. The Town did not specify under what exemption of the Public Records Law it intends to withhold the requested records. As a result, I find that the Town did not satisfy its burden in responding to this records request. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Town is ordered to provide Mr. Carangelo 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: Kenneth Carangelo