Heather MacDonald v. Hull, Town of - Town Clerk (SPR 20240560)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2024 SPR24/0560 James B. Lampke, Esq. Town Counsel Town of Hull 253 Atlantic Avenue Hull, MA 02045 Dear Attorney 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 prior appeals. See SPR23/2908 Determination of the Supervisor of Records (December 11, 2023); SPR23/2977 Determination of the Supervisor of Records (December 22, 2023) and SPR24/0096 Determination of the Supervisor of Records (January 24, 2024). In my January 24th determination, I found that it was unclear what exemption(s) under the Public Records Law the Town was claiming to redact information. I further directed the Town to clarify if it possessed additional records. The Town provided a response on February 22, 2024. Unsatisfied with the Town’s response, Ms. MacDonald petitioned this office and this appeal, SPR24/0560, 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). 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 SPR24/0560 Page 2 March 5, 2024 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 records custodian must provide the responsive records. The Town’s February 22nd Response In its February 22, 2024 response, the Town provided redacted records. Current appeal In her appeal, Ms. MacDonald states, “[t]here is now the inclusion of more text messages that were not sent in the initial response on 12/20/23... There are still no images included that are referenced in the text thread. The context of the text messages makes any redactions completely unnecessary (I am quite aware of who the sender is) and no exemptions have been declared. I also find it difficult to believe that the text messages stopped so abruptly on 10/18/23 at 9:19pm. There was a conservation meeting that my neighbor attended -very vocally- and I am certain that she would have followed up with [a named individual] after that… The beginning of the attached text thread also seems to begin in the ‘middle’ of a conversation… Where are the messages prior? The email included here is more redacted than the first time that it was provided -with no exemptions declared…” 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 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, although it has clarified the dates and times, it remains unclear what exemption under the Public Records Law the Town is claiming to redact the remaining information in the requested records. 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

James B. Lampke SPR24/0560 Page 3 March 5, 2024 find the Town must identify an exemption and explain with specificity how the exemption applies 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. 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