Colman Herman v. Milton, Town of - Town Clerk (SPR 20241180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 3, 2024 SPR24/1180 Susan Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Colman Herman appealing the response of the Town of Milton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2024, Mr. Herman requested, “…copy(ies) of the agreement(s) that the [Town] executed with law firm(s) for litigation against the attorney general in the matter of the MBTA housing law.” The Town responded on March 29, 2024 and April 16, 2024. Unsatisfied with the Town’s responses, Mr. Herman petitioned this office and this appeal, SPR24/1180, was opened as a result. Subsequently, the Town provided a supplemental response on April 25, 2024. Mr. Herman appealed this supplemental response. 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. 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

Susan Galvin SPR24/1180 Page 2 May 3, 2024 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, April 16th and April 25th responses In its March 29, 2024 response, the Town asserted, “[y]our request will be forwarded to the Town Administrator … to determine the volume and any costs associated with satisfying your request. You will be contacted about the availability and/or provided with copies of the records in question.” In its April 16, 2024 response, the Town asserted: The Town intends to provide the responsive record and is currently reviewing for any necessary redactions regarding the engagement. The Town’s engagement with Goodwin Proctor is for the SJC proceedings regarding the MBTA Communities Act and the Select Board approved engagement with a fixed fee for those services of $275,000. It is unclear from your request if you were also seeking the engagement letter with the firm that provides Town Counsel services? If so, please let me know. Mr. Herman responded to the Town’s question, confirming he is “seeking the agreement the Town has with the law firm.” In its April 25, 2024 response, the Town provided the law firm engagement letter with a redaction. Current Appeal In response to the Town’s April 25th production, Mr. Herman states: [1] There was one redaction made in the document (on the top of the first page). But [the Town] failed to claim an exemption for the redaction. [2] The agreement cites an attached “Standard Engagement Terms” document, but [the Town] failed to produce that…. The Town’s April 25th response did not contain the specificity required in a denial of access to public records. The Town redacted a portion of the record without claiming any exemption(s) in the Public Records Law that would support the redacting of the responsive records. 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. As a result, I find that the Town did not satisfy its burden in responding to this records request. Consequently, the Town must identify an exemption that applies to withhold portions of the records from disclosure. G. L. c. 66, § 10(b).

Susan Galvin SPR24/1180 Page 3 May 3, 2024 Based on Mr. Herman’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses the “Standard Engagement Terms” document referenced in the record provided. 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 this record exists. Conclusion Accordingly, the Town is ordered to provide Mr. Herman with a response, 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. Herman may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman