Kevin Wood v. Georgetown, Town of - Town Clerk (SPR 20232537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2023 SPR23/2537 Kerri Ann McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Kevin Wood appealing the response of the Town of Georgetown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 23, 2023, Mr. Wood requested: [1.] Threatening email [the Town] claimed you received [on] 10.23.23. [2.] Threatening or vitriolic emails [the Town has] received for the period of time 01.01.23 to the present. The Town responded on October 24, 2023. Unsatisfied with the response, Mr. Wood petitioned this office and this appeal, SPR23/2537, 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, § l0A(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

Kerri Ann McManus SPR23/2537 Page 2 November 3, 2023 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 24th Response In its October 24, 2023 response, the Town stated, “the email you are referencing is in an open investigation. [Mr. Wood] may reach out to the Georgetown Police Department.” Current appeal In his appeal, Mr. Wood states, “[The Town’s] refusal to produce these records is not an allowable exemption under 950CMR sec 32. In addition Item #2 was ignored.” Based on the Town’s response and Mr. Woods’ appeal, it is unclear what exemption under the Public Records Law the Town is claiming to withhold the requested records from disclosure. 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). To the extent that the requested records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records are exempt from disclosure under the Public Records Law. 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). The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Further, it is unclear if the Town possesses additional records that may be responsive to Item 2 of 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Wood 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

Kerri Ann McManus SPR23/2537 Page 3 November 3, 2023 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: Kevin Wood