Lekzi NesSmith v. Rochester, Town of - Town Clerk (SPR 20241077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2024 SPR24/1077 Margie L. Barrows Town Clerk Town of Rochester One Constitution Way Rochester, MA 02770 Dear Ms. Barrows: I have received the petition of Attorney Amy Laura Davidson, of Sandulli Grace PC, appealing the response of the Town of Rochester (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2024, Attorney Davidson requested “a full copy of the Pomeroy Report concerning the Rochester Police Department.” Following further correspondence, the Town responded on April 3, 2024, providing responsive records in redacted form. Unsatisfied with the Town’s response, Attorney Davidson appealed, and this case 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. 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. 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

Margie L. Barrows SPR24/1077 Page 2 April 26, 2024 The Town’s April 3rd Response In its April 3, 2024 response, the Town provides “a redacted copy of the Rochester Police Management Study conducted by Pomeroy Resources, Inc.” Current Appeal In her appeal petition, Attorney Davidson contends the following: The copy of the report [she] received contained numerous redactions including approximately thirteen paragraphs, twenty-two sentences, and the entirety of three separate appendix documents. To date, the Town has not claimed that the requested records or portions thereof are exempt from disclosure. Nor has it provided any explanation for the redactions. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Town’s response, it is unclear which exemption the Town is citing in order to redact the responsive report. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Davidson 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: Amy Laura Davidson, Esq.