John Lavery v. Carlisle, Town of - Office of the Town Clerk (SPR 20241175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2024 SPR24/1175 Peggy Wang Records Access Officer Town of Carlisle 66 Westford Street Carlisle, MA 01741 Dear Ms. Wang: I have received the petition of John Lavery appealing the response of the Town of Carlisle (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2024, Mr. Lavery requested the following: In June 2023, [an identified individual] submitted two invoices to the Town described in [an article as]: [1] … an invoice for $12,000 worth of maintenance without supplying specifics of the work completed[; and] [2] … on June 13 … a more detailed invoice. [An identified individual] noted on the second invoice that the total value of the services completed … would otherwise be worth $36,500. However he was billing the town $12,000 as agreed…. The Town responded on April 5, 2024. Unsatisfied with the Town’s response, Mr. Lavery petitioned this office and this appeal, SPR24/1175, 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

Peggy Wang SPR24/1175 Page 2 May 2, 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 5th response In its April 5, 2024 response, the Town provided documents responsive to Item 2 of the request. Current Appeal In his appeal, Mr. Lavery clarified that Item 2 of his request has been satisfied and that he continues to seek records responsive to Item 1. Mr. Lavery states: The invoice you sent is the internal “final piece of the chain,” accounting wise.… I would like the [invoices] submitted to the town. …Perhaps the invoices are just a number and the explanation is in ancillary material (notes, email, etc.). If so, I would like that material as well. Based on Mr. Lavery’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses the initial invoice submitted to the Town. 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 records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Lavery with a response to his 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. Lavery may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Peggy Wang SPR24/1175 Page 3 May 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: John Lavery