Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20241009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2024 SPR24/1009 Michael Seery Town Clerk 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 7, 2024, Mr. Kelleher requested: [1] Copies of the complaint filed by [an identified individual] with the Attorney General’s office on November 7, and any related documents . . . [such as] request for a “further review”[; and] [2] Copies of all emails and meeting minutes drafts from our clerk . . . including any new drafts of meeting minutes created by [an identified individual] from [the clerk]’s drafts. Previous Appeal The request was the subject of a previous appeal. See SPR24/0905 Determination of the Supervisor of Records (April 2, 2024). In my April 2, 2024 determination, I learned that the Town provided Mr. Kelleher with a further response on April 2, 2024. Unsatisfied with this response, Mr. Kelleher petitioned this office and this appeal, SPR24/1009, 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

Michael Seery SPR24/1009 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(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. 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 April 2nd response In its April 2, 2024 response, the Town stated that it had provided all responsive emails with redactions pursuant to Exemption (c) of the Public Records Law. Current Appeal In his appeal, Mr. Kelleher appears to not be contesting the redactions pursuant to Exemption (c) of the Public Record Law. However, Mr. Kelleher alleges that the Town has additional emails. Mr. Kelleher asserts, “... I have copies of some of the clerk’s emails that [an identified individual] did not include in my open records request.” Based on Mr. Kelleher’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses any additional records responsive to his 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). However, 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 if any additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Kelleher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Mr. Kelleher may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Michael Seery SPR24/1009 Page 3 April 17, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Kelleher