Commonwealth Transparency v. Arlington, Town of - Clerk's Office (SPR 20241256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1256 Christine Bongiorno Records Access Officer Town of Arlington 730 Massachusetts Avenue Arlington, MA 02476 Dear Ms. Bongiorno: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Town of Arlington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2024, the requestor sought the following records: …for the time period January 1, 2018 through April 5, 2024: [1] Any and all contracts, communications, or documents of any kind with the following: [identified individuals and addresses;] [2] Any and all payments made to: [identified individuals and addresses;] and [3] Any and all conflict of interest documents for: [identified individuals and addresses.] This request includes but is not limited to email, email-attachments, text messages, calendar entries, voice mail messages and/or physical documents…. Previous appeal This request was the subject of a previous appeal. See SPR24/1227 Determination of the Supervisor of Records (April 25, 2024). In my April 25th determination, I learned that the Town provided the requestor with a response dated April 25, 2024. In this response, the Town provided responsive records and asked for further clarification regarding email records. Unsatisfied with the Town’s April 25th response, the requestor petitioned this office and this appeal, SPR24/1256, was opened as a result. 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

Christine Bongiorno SPR24/1256 Page 2 May 9, 2024 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. Att’y 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 25th response In its April 25, 2024 response, the Town asserted: Attached are records which satisfies a portion of the above-reference criteria. You will find a summary of payments made to [an identified individual] as well as a memo related to the interim appointment of [this individual.] No records exist for [other two identified individuals.] Please be advised, upon review of emails from January 1, 2018 to present there were 532 emails including attachments specifically including [an identified individual]. Due to the magnitude of work required to pull these emails and review and redact sensitive materials, I ask that you provide greater clarification related to what you are looking to obtain…. Current Appeal In their appeal, the requestor asserts, “[a]ll responsive documents are requested and required to be released and as plainly read in the response above 532 emails are being withheld, and no response has been offered to multiple portions of the request (Contracts, Non-Compete, and Schools).” In its response, the Town has not denied the requestor any access to records, but is seeking clarification regarding the scope of the request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to

Christine Bongiorno SPR24/1256 Page 3 May 9, 2024 assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Given the expansiveness of the request, the requestor is encouraged to provide the Town with the needed clarification regarding the volume of emails referenced in the Town’s response. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). In accordance with the Public Records Law, 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). 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), (b)(ii). In this case, the Town has used its knowledge of the records in order to provide an estimate of the number of emails responsive to the requestor’s request. To the extent possible, the records must be provided on a rolling basis. Further, based on the requestor’s petition, it is unclear if the Town possesses any additional records that have not been identified or provided aside from the email records. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide the requestor 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. The requestor 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: Commonwealth Transparency