Jonathan Polloni v. Falmouth, Town of (SPR 20232534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2023 SPR23/2534 Peter Johnson-Staub Assistant Town Manager Town of Falmouth 59 Town Hall Square Falmouth, MA 02540 Dear Mr. Johnson-Staub: I have received the petition of Jonathan M. Polloni, Esq., on behalf of his client, Thomas T. Vose, appealing the response of the Town of Falmouth (Town) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2023, Mr. Vose requested “[c]omplaints against the event Coast Fest held at Falmouth Marine Park.” The Town provided a response on August 9, 2023. Unsatisfied with the response, Attorney Polloni petitioned this office and this appeal, SPR23/2534, 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. 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. 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

Peter Johnson-Staub SPR23/2534 Page 2 November 7, 2023 The Town’s August 9th response In its August 9, 2023 response, the Town stated that it had “completed its search of records in its custody and [has] attached all responsive documents to this email with one exception.” 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 record. 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. Further, it is unclear if the Town identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Although the Town states that the requested record in its possession should be withheld, it is unclear what responsive record it is withholding from disclosure. Therefore, the Town must identify the record(s) it has in its possession that it withheld, as well as provide specific reasons for such withholding. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See 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 Attorney Polloni 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: Jonathan M. Polloni, Esq.