Anthony Kinahan v. Holbrook, Town of - Town Clerk (SPR 20240219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0219 Jeanmarie Tarara Town Clerk Town of Holbrook 50 North Franklin Street Holbrook, MA 02343 Dear Ms. Tarara: I have received the petition of Anthony Kinahan appealing the response of the Town of Holbrook (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 8, 2024, Mr. Kinahan requested “[e]mails and messages (text, WhatsApp, Facebook, etc.) between Select Board Member . . . and other Select Board members, the Town Treasurer or other staff regarding the Assistant Town Administrator position and/or the Department of Labor Standards (DLS).” The Town provided a response on January 18, 2024. Unsatisfied with the response, Mr. Kinahan petitioned this office and this appeal, SPR24/0219, 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(b)(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Jeanmarie Tarara SPR24/0219 Page 2 February 6, 2024 Current appeal In his appeal, Mr. Kinahan states the following: I believe that the Town did not fully comply with the request because the emails dated September 18, 2023 appear to have been sent to other employees. I did not receive a copy of the email from individuals that may have been BCC’d. Also, I do not believe the Town thoroughly investigated the request. I believe there are text messages between [a named individual] and employees specific to the item in my request. I do not believe the Town investigated anything beyond emails sent by [a named individual] on his Town email. The Town’s January 18th response In its January 18, 2024 response, the Town provided Mr. Kinahan with records responsive to his request. Unclear if additional records exist Based on the Town’s response and Mr. Kinahan’s appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, it is unclear if the Town possesses records related to “the email from individuals that may have been BCC’d” on the September 18, 2023 emails, as well as “text messages between [a named individual] and employees specific to the item in [his] request” per Mr. Kinahan’s appeal. 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). 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). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Kinahan 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.

Jeanmarie Tarara SPR24/0219 Page 3 February 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Anthony Kinahan