Jean Krulic v. Truro, Town of - Town Clerk (SPR 20232577)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2577 Noelle Scoullar Executive Assistant Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Jean Krulic appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 26, 2023, Ms. Krulic requested: [M]aterials only on the following public records requests including the original request, all responses to and from the respondent including any documents/ records that were sent in response to these requests: [1.] 2023002 by [a named individual] on January 20, 2023 [2.] 2023016 by [a named individual] on May 4, 2023 [3.] 2023021 by [a named individual] on May 18 [4.] 2023022 by [a named individual] on May 24, 2023 [5.] 2023027 by [a named individual] on June 7, 2023 [6.] 2023019 by [a named individual] on May 12, 2023 The Town provided a response on July 31, 2023. Unsatisfied with the response, Ms. Krulic petitioned this office and this appeal, SPR23/2577, 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). 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

Noelle Scoullar SPR23/2577 Page 2 November 8, 2023 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. The Town’s July 31st Response In its July 31, 2023 response, the Town provided one record relating to Item 3 and stated, “[t]he requests by [a named individual] (CASE#2023021) and [a named individual] (CASE#2023027) are with legal counsel and still open. If/when they close, [the Town] can send [Ms. Krulic] those records as well.” Current appeal In her appeal, Ms. Krulic states, “the Town has to date issued no responsive records and instead has supplied one letter from Town Counsel on one of the cases… do believe that the first statement (i.e., they were with Counsel) should not have precluded their dissemination unless there was on-going litigation, yet no case number was offered… The Town has remained silent on why it has refused to produce materials on the other three public records requests made …” Based on the Town’s response and Ms. Krulic’s 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).

Noelle Scoullar SPR23/2577 Page 3 November 8, 2023 Conclusion Accordingly, the Town is ordered to provide Ms. Krulic 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: Jean Krulic