Christopher Rocca v. Truro, Town of (SPR 20232949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2949 Noelle Scoullar Records Access Officer Town of Truro 24 Town Hall Road P. O. Box 2030 Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Christopher Rocca 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 October 18, 2023, Mr. Rocca requested “[e]mail messages or other written communications shared electronically or on paper between Raphael Richter and any member of the Truro Select Board or any Town [C]ommittee member, between the dates 08/01/2023 and 10/18/2023.” On October 19, 2023, the Town provided a confirmation receipt of the request. The Town provided a further response on November 1, 2023, including an estimate for copies of the records totaling $64.07. In a November 3, 2023 email to Ms. Scoullar, Mr. Rocca stated, “[t]hanks for the estimate Noelle. I just dropped a check off at town hall…” On December 4, 2023, Mr. Rocca emailed Ms. Scoullar and copied Nicole Tudor and Elisabeth Verde at the Town, stating, “[c]an you provide the response to this request today? I delivered the check for $64.07 to the Clerks’ [O]ffice on 10/3/2023.” After paying the estimate on November 3, 2023, and not receiving the records responsive to the October 18th request, Mr. Rocca petitioned this this office and this appeal, SPR23/2949, was opened as a result. In his petition, Mr. Rocca stated, “[a]t the time of this writing (12/6/2023), I received no materials related to [the Town’s case #2023075]…” 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 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 SPR23/2949 Page 2 December 20, 2023 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) (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. Current Appeal Subsequent to the opening of this appeal, on December 18, 2023, Mr. Rocca received an Excel spreadsheet that lists all public records requests made to the Town from January 10, 2023 through December 4, 2023. In a December 18th email to this office, Mr. Rocca states, regarding the Excel spreadsheet the Town provided: [t]he row for [public records request] 20233075 confirms my payment was received, the data was collected and has been pending Administration review since 11/3/2023. It is not clear who Administration is in this context, however as previously documented, the [Town] Manager, Darrin Tangeman, has ignored multiple questions regarding the [public records request] appealed in SPR23/2949 … Additionally you will see in the attached [spreadsheet] comments such as Darrin has thumb drive indicate the [Town Manager] is personally and directly involved in the Town’s [public records request] process. This situation is particularly troubling as all of my requests are related to a large group of voter registration challenges submitted by . . . (. . . Snows Rd Truro MA) and executed by [Mr. Tangeman’s] direct report, Elisabeth Verde. On the surface it appears Town officials are attempting to prevent the public from fully understanding how the voter challenge process was planned and executed. Provide Timeframe for Production of Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the

Noelle Scoullar SPR23/2949 Page 3 December 20, 2023 timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Rocca’s request was submitted on October 18, 2023, and to date, the Town has not provided responsive records, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it intends to provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Rocca with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Christopher Rocca