Dawn Padovani v. Carver, Town of - Town Clerk (SPR 20232947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2947 Michelle Sheehan Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Dawn Padovani appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2023, Ms. Padovani requested “…a post put out by the cook of the Carver Council on Aging ... on the Carver Council on Aging social media Facebook page on August 2, 2023.” Previous appeals This request was the subject of previous appeals. See SPR23/1901 Determination of the Supervisor of Records (August 29, 2023) and SPR23/2507 Determination of the Supervisor of Records (November 6, 2023). In the November 6th determination, I ordered the Town to clarify whether the requested record still exists. The Town provided a response on November 29, 2023. Unsatisfied with the Town’s response, Ms. Padovani petitioned this office and this appeal, SPR23/2947, 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 town 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 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

Michelle Sheehan SPR23/2947 Page 2 December 19, 2023 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 29th response In its November 29, 2023 response, the Town states that “the requested record does not exist, and, therefore, the Town does not have any responsive records.” Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town’s response raises concerns regarding records management practices by the Town. Please be aware safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Town may contact the Records Management Unit (RMU) at 617- 727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Given that the requested record does not exist and this office has no authority to compel the Town to create records, I will consider this administrative appeal closed. If Ms. Padovani is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Dawn Padovani