Abigail Rosen v. Tisbury, Town of (SPR 20232811)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2811 J. Hillary Conklin Town Clerk Town of Tisbury P. O. Box 606 51 Spring Street Vineyard Haven, MA 02568 Dear Ms. Conklin: I have received the petition of Abigail Rosen, of Martha’s Vineyard Times, appealing the response of the Town of Tisbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 8, 2023, Ms. Rosen requested, “…documentation relating to the litigation between [an identified former Town police candidate] and the Town of Tisbury, et. al., that had been settled on August 24. Specifically, we are seeking disposition transcripts, including from a [Town police Sergeant], and the detailed terms of the settlement between [the identified Town police candidate] and the Town.” On November 8, 2023, the Town acknowledged Ms. Rosen’s request, indicating, “[w]e have received your public records request…regarding the [identified former Town police candidate’s] litigation and it will be forwarded to the keeper(s) of those records.” On November 15, 2023, the Town provided Ms. Rosen with the responsive settlement agreement. Upon receipt of the settlement agreement, Ms. Rosen informed the Town, “[w]e are still looking to obtain the written (or recorded) transcripts of the depositions of all parties involved, including that of [an identified Town police sergeant].” As a result of not receiving the responsive deposition transcripts, on November 20, 2023, Ms. Rosen petitioned the Supervisor of Records, and this appeal was opened. 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 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

J. Hillary Conklin SPR23/2811 Page 2 December 4, 2023 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) (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…”); 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 November 15th response In its November 15, 2023 response, the Town stated, “Good Morning, I have one document responsive to the request. A copy of the settlement agreement should be provided to Abigail.” 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). Based on the Town’s November 15th response, it is unclear whether the Town possesses additional records responsive to the request. Specifically, the Town must clarify whether it possesses the requested deposition transcripts. Conclusion Accordingly, the Town is ordered to provide Ms. Rosen with a response to her request 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.

J. Hillary Conklin SPR23/2811 Page 3 December 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Abigail Rosen