Roxanne Gunther v. Monson, Town of - Town Clerk (SPR 20240089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0089 Mary F. Watson Monson Town Clerk Town of Monson 110 Main Street Monson, MA 01057 Dear Ms. Watson: I have received the petition of Roxanne Gunther appealing the response of the Town of Monson (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 27, 2023, Ms. Gunther requested “a copy of the recent contracts for the Town Administrator, Police Chief and Fire Chief.” The Town responded on January 11, 2024. Unsatisfied with the Town’s response, Ms. Gunther petitioned this office and this appeal, SPR24/0089, 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 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(d)(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 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

Mary F. Watson SPR24/0089 Page 2 January 24, 2024 records custodian must provide the responsive records. The Town’s January 11th Response In its January 11, 2024 response, the Town stated, “the contracts are not available according to our Town Administrator.” Current appeal In her appeal, Ms. Gunther states, “[the Town told] me that I cannot get a copy of the contracts for the Chief of Police, Chief of the Fire Department and the Town Administrator. I don’t know why these would not be public records as they are going to be released when we do our town meeting in May. Also, I received copies of other Town Administrators so I don’t know why these contracts are not public records.” Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the records are exempt from disclosure under the Public Records Law. Based on the Town’s response, it is unclear whether it possesses records responsive to the request. 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). Additionally, it is uncertain what exemption under the Public Records Law the Town is claiming to withhold the requested records from disclosure, if any. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact 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 is based…”); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Consequently, I find the Town must clarify whether it possesses the requested records, and if so, identify an exemption and explain with specificity how the exemption applies to withhold the records. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Ms. Gunther with a response to the request, provided 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.

Mary F. Watson SPR24/0089 Page 3 January 24, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Roxanne Gunther