Christopher Rocca v. Truro, Town of (SPR 20232950)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2950 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 19, 2023, Mr. Rocca requested “…all communications to or from the following individuals between the dates 10/1/2023 and 10/19/2023 . . .” On October 19, 2023, the Town acknowledged receipt of the request. In the October 19th response, the Town states, “[n]ote: I would like to clarify your request for the person responsible for doing the search. Are you specifically looking for emails sent to and from these three individuals between themselves, or are you looking for ALL emails sent to and from these three individuals to anyone. That should help us in the search.” On October 23, 2023, Ms. Scoullar sent another email to Mr. Rocca seeking clarification. On October 23rd, Mr. Rocca emailed Ms. Scoullar stating, “…I meant ALL email sent to or from those individuals. I am actually only interested in communication related to the large number of Voter [R]egistration challenges, however, I do not know how effectively limit the search to that topic and I am willing to dig through a large data dump myself. I do not want to burden you with having to make a judgement on every email message.” On November 3, 2023, the Town provided a fee estimate totaling $158.75, and explained, “…it is anticipated that the Town will be able to produce most of the records electronically. In the event that the best way to produce a large quantity of files is to provide them on a USB Drive, you will be charged for the cost of the USB Drive.” The Town also offered a modification due to the voluminous nature of the request. The Town suggested, “[i]f there is any way to narrow a request, including by providing the Town with a list of keywords or search terms you would like to use, or by providing a timeframe within which to search for electronic and hard 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 SPR23/2950 Page 2 December 20, 2023 copy records, the Town will be able to respond more efficiently, particularly with limited staffing.” On November 8, 2023, Mr. Rocca emailed Ms. Scoullar, stating, “[t]hanks for the estimate. I just dropped off a check at the [C]lerks office, please proceed with the data collection as requested.” On November 29, 2023, the Town provided a link to the responsive records. On November 30, 2023, Ms. Scoullar wrote, “[o]nce you open that folder, take a look. Those documents should be responsive to that records request … I do see that there was a log in [E]xcel listing attorney client privilege items as well (the log) gives you a quick summary but does not provide the actual email due to those atty. client privileges.” After reviewing the records provided, on November 30th, Mr. Rocca questioned the disparity in the number of records, and stated, “…[t]he estimate said you (the staff) had to review 402 files for privilege. I see 176 email messages in the PDF, 88 entries in the Privilege [L]og and about 89 email attachments for a total of roughly ~ 350 items to review. How did you arrive at the 402 number, I just want to make sure I’m not misunderstanding anything.” Ms. Scoullar informed Mr. Rocca, “[l]et me relay this to our Town Manager and get an answer over to you asap.” On December 6th, after not receiving an answer regarding the discrepancy between the number of records estimated by the Town, and what Mr. Rocca received, he 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 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).

Noelle Scoullar SPR23/2950 Page 3 December 20, 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. Current Appeal In his December 6th petition, Mr. Rocca states, “I would like to understand why the [estimate] identified 402 files but only 264 files are accounted for in the response. Additionally, I would like to understand why messages shared with outside parties are listed under attorney- client privilege and not included in the [public record] response.” Based on Mr. Rocca’s petition, coupled with the Town’s responses, it is unclear whether the Town possesses additional records responsive to Mr. Rocca’s October 19th request. The Town must clarify this matter. 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). In accordance with the Public Records Law, 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 additional 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). 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