Heather MacDonald v. Hull, Town of - Town Counsel (SPR 20241003)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2024 SPR24/1003 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 previous appeals. See SPR23/2908 Determination of the Supervisor of Records (December 11, 2023); SPR23/2977 Determination of the Supervisor of Records (December 22, 2023); SPR24/0096 Determination of the Supervisor of Records (January 24, 2024); and SPR24/0560 Determination of the Supervisor of Records (March 5, 2024). In my March 5th 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 March 29, 2024. Unsatisfied with the Town’s response, Ms. MacDonald petitioned this office and this appeal, SPR24/1003, 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 SPR24/1003 Page 2 April 17, 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 March 29th Response In its March 29, 2024 response, the Town stated: [i]n reference to the basis for redactions, as indicated before and I reiterate, they are based on [Exemptions (a), (c), (f), and (n)]. Expanding on the above and not as a limitation thereof, in my experience of decades in dealing with code enforcement matters, and I believe in the experience of other administrative personnel charged with the responsibility of code enforcement, disclosures of the names of complainants and other identifying information of complainants results in discouraging members of the public from contacting the appropriate local authorities to report violations or possible violations. Not only does that result in possible violations going undetected, but also can lead to important public safety and health risks becoming more of a danger to the public. In applying a balancing analysis, the pendulum must swing towards the public interest. Thus, the Town takes the well-reasoned position that disclosure of more identifying information of complainants, at this stage of the matter, will dissuade members of the public from contacting the Town. It is in the public interest that members of the public feel comfortable in contacting the local authorities if the[y] believe there is a violation of the law. Code enforcement personnel do not have the time nor staff to always go out searching for violations. It is the nature of the system that an important part of code enforcement is receiving information from members of the public, regardless of how upset the person being complained about may feel. At this stage of the matter, the Town declines to release any further information that may disclose the names of complaints in the records released. Current appeal In her appeal, Ms. MacDonald states, “[w]hy are the dates and times redacted and then handwritten onto the document? There are dates that are incorrect… question the beginning of this thread. It begins with ‘So. Obvi he wants his fence to be what?’ This would imply to me that there was conversation prior to this date and time. The only thing that has changed is the yellow

James B. Lampke SPR24/1003 Page 3 April 17, 2024 highlighter on this document.” 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, it is unclear whether the Town is claiming Exemptions (a), (c), (f), and (n) to redact only the contact information of complainants from the records. In addition, it remains uncertain what exemption(s) under the Public Records Law the Town is claiming to redact additional information, if any, 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…”). Consequently, I find the Town must identify the information it has redacted from the provided records, 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 these matters. 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