Scott J. Crisafulli v. Wareham, Town of - Town Clerk (SPR 20241169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2024 SPR24/1169 Lisa J. Johnson Interim Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Johnson: I have received the petition of Scott J. Crisafulli appealing the response of the Town of Wareham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2023, Mr. Crisafulli requested: [1] Notice of intent filed for the dock installation at 13 Salt Creek Rd., [the Town] (Connors); [2] All Conservation Commission meeting minutes regarding the NOI filing for the dock installation at 13 Salt Creek Rd.; [3] All other documents, studies, plans, surveys, etc. regarding the dock installation at 13 Salt Creek Rd.; [4] The Harbor Masters and The Division of Marine Fisheries NOI review regarding the dock installation at 13 Salt Creek Rd.; and, [5] The Order of Conditions regarding the installation of the dock at 13 Salt Creek Rd. On December 19, 2023, the Town provided Mr. Crisafulli with records responsive to the request. After further correspondences with the Town, and claiming to have not received a specific document, Mr. Crisafulli petitioned this office and this appeal was opened. 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 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

Lisa J. Johnson SPR24/1169 Page 2 May 2, 2024 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. Current appeal In his appeal petition, Mr. Crisafulli states, “. . . I have received all documents except for one. I have had many phone conversations with Town Administration of Wareham and the Clerk’s Office to no avail. I continue to receive the wrong document from a project not involving this matter…” In light of the above, it is unclear if the Town possesses additional records responsive to Mr. Crisafulli’s request. Particularly, the Town must clarify if it possesses the “Harbor Masters review of the dock installation request at 13 Salt Creek Rd.” 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Crisafulli 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. Mr. Crisafulli may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1).

Lisa J. Johnson SPR24/1169 Page 3 May 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Scott J. Crisafulli