Heather MacDonald v. Hull, Town of - Town Clerk (SPR 20240096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0096 James B. Lampke Town Counsel Town of Hull 253 Atlantic Avenue Hull, MA 02045 Dear Mr. Lampke: I have received the petition of Heather MacDonald appealing the nonresponse of the Town of Hull (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2023, Ms. MacDonald requested, “... email and text messages to Conservation Commissioner . . . regarding . . . (my home address) [and] . . . emails between Town Clerk . . . any and all departments/town personnel regarding my property. . . .” Prior Appeals This request was the subject of previous appeals. See SPR23/2908 Determination of the Supervisor of Records (December 11, 2023) and SPR23/2977 Determination of the Supervisor of Records (December 22, 2023). In my December 22nd determination, I learned that the Town intended to provide Ms. MacDonald with a response. The Town provided a response on January 8, 2024. Unsatisfied with the Town’s response, Ms. MacDonald petitioned this office and this appeal, SPR24/0096, 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 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

James B. Lampke SPR24/0096 Page 2 January 24, 2024 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 January 8th Response In its January 8, 2024 response, the Town provided records and stated the following: [A named individual] advises that (other than emails between [a named individual] and I which would be attorney-client/work product protected documents) there have been no emails sent to him regarding [a specified address]… I will check to see if there were any other parts to this thread and if so, will produce. If I do not produce any it is because there were none, unless I advise otherwise… After [the Town’s] response, with attachments, was sent in, I became aware that they may have been additional emails and text messages not provided to me. I indicated that I would review them and produce them if responsive as a supplement to the Town’s response. I have reviewed this added information and the Town is producing it as responsive to Ms. McDonald’s request, as Exhibit F of 12.20.23. I note that the dates, times and to/from information is not on parts of this Exhibit. I am awaiting that information and will if necessary supplement this response with it when I receive it. The staff member who has access to that information is on leave but expected back in the near future. The redactions in the July 20, 2023 email and any other documents produced are based on [Exemptions (a), (c), (f), and (n) of the Public Records Law]. Current appeal In her appeal, Ms. MacDonald states, “[t]he email exchange between [a named individual] and ‘Brendon’ (dated 10/5/23) mentions ‘previous emails’ but no other emails are attached… The text messages from [a named individual] are too difficult to follow. There are no dates, times, sender info or clear order to make reading them easy. There are also references to pictures but none are included in the thread…” 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 Department did

James B. Lampke SPR24/0096 Page 3 January 24, 2024 not meet its burden of demonstrating how the redacted information is exempt from disclosure under the Public Records Law. Based on the Town’s response, it is unclear what exemption under the Public Records Law the Town is claiming to withhold “dates, times and to/from information” of the requested records from disclosure. 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 explain with specificity how the exemptions cited in its response apply to redact the records. G. L. c. 66, § 10(b). Additionally, in light of Ms. MacDonald’s appeal, it is unclear if the Town possesses additional records that may be responsive to the request. Specifically, the Town must confirm whether it possesses “filled out/completed forms and/or applications.” 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). To the extent that responsive 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. MacDonald 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. Sincerely, Manza Arthur Supervisor of Records cc: Heather MacDonald