David Barner v. Norwood, Town of - Town Clerk (SPR 20232965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2965 Alexander G. Haggerty Treasurer and Collector Town of Norwood 566 Washington Street Norwood, MA 02062 Dear Mr. Haggerty: I have received the petition of David N. Barner appealing the response of the Town of Norwood (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 30, 2023, Mr. Barner requested a copy of the “W2s for [an identified individual] issued by the [Town], Recreation Department for any and all years 1985, 1986, 1987, 1988, 1989, 1990, 1991 [and] 1992. Municipality employee earnings are reported publicly and are a matter of public record.” On October 30, 2023, the Assistant Town Clerk, Patricia Ralph informed Mr. Barner, “[y]our request was received in the Town Clerk’s [O]ffice and has been sent to the appropriate departments.” On October 30th, Alexander Haggerty, the Town’s Treasurer and Collector, provided Mr. Barner with an initial response, stating, “[w]e would be happy to look through our records and provide any records we are able to do. As these are very old W-2s I would also request the information from the [Internal Revenue Service (IRS)] as you should have filed all copies with them also. I will let you know what I am able to find.” On November 20, 2023, Mr. Haggerty emailed Mr. Barner again, stating, “[a]s you can see, I did respond on the same day of your request. This information is not always accessible as I was not here in 1986 through 1992. We are looking for your records, have you reached out to the IRS as I suggested. They will also have your records. M.G.L. Chapter 66, Section 10 states that your request must receive a response within 10 days to which I provided. We are trying to search for your records. If we are able to locate them we will contact you.” After not receiving any further response from the Town, Mr. Barner petitioned this office, and this appeal was opened. 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

Alexander G. Haggerty SPR23/2965 Page 2 December 20, 2023 In his petition, Mr. Barner asserts, “I have been in contact with the Treasurer’s Office for over a year regarding verification of my past employment. I was told that the system used was transitioned to a new system in 2020 and the information prior to that was backed up, and available. With their failure to gather the past information for my specific employment verification form, my best alternative is to receive my [W]2 forms from those years … As an alternative to the public record, I will accept my completed past employment form that was sent to [two identified individuals].” Purpose of request; identity of requestor Mr. Barner is advised that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Barner’s purpose in making the request has no bearing on the public status of any existing responsive records under the Public Records Law. 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). 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 December 13th Response Subsequent to the opening of this appeal, the Town provided a December 13, 2023 response to Mr. Barner and this office. In the December 13th response, the Town asserts:

Alexander G. Haggerty SPR23/2965 Page 3 December 20, 2023 …in regard to the public records appeal along with the public request itself. After multiple attempts and searches we are unable to find any record of your employment with the [Town] from the years 1985 to 1991. The only information that can be found in regards to your employment begins 1992 to which we previously provided the information but I believe you are looking for prior records. These are not W-2s as you requested however. We have searched all saved documents in any attempt for information including W-2 records and also Town Meeting Finance Committee reports, in which all salaries are listed. Mr. Barner if there is any way the Town can assist you within our abilities we will do so but at this time we cannot fulfill your request as the information you are requesting either does not exist or cannot be located. On December 12, 2023, Mr. Barner informed this office that a search for the responsive records, has been conducted by the Town; however, the Town has not found W-2 records for years 1985, 1986, 1987, 1988, 1989, 1990, 1991. 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 light of the Town’s response, it is unclear whether the requested records existed and were permissibly destroyed or whether they never existed. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Barner 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: David Barner