Lee Biernbaum v. Brookline, Town of - Town Clerk (SPR 20241273)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1273 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street, Room 104 Brookline, MA 02445 Dear Mr. Kaufman: I have received the petition of Lee Biernbaum appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Mr. Biernbaum requested, “any and all documentation or communication from 10/14/2022 to 11/14/2023 (inclusive) to or from the Moderator, Assistant Moderator(s), and any Town staff supporting the Moderator or Assistant Moderator(s) containing the following [identified] terms individually or in combination….” Previous appeal This request was the subject of a pervious appeal. See SPR24/1011 Determination of the Supervisor of records (April 8, 2024). In my April 8th determination, I ordered the Town to provide Mr. Biernbaum with a response to his request. Subsequently, the Town responded on April 22, 2024, indicating it had previously provided responsive records. Unsatisfied with the Town’s response, Mr. Biernbaum petitioned this office and this appeal, SPR24/1273, 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 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

Ben Kaufman SPR24/1273 Page 2 May 9, 2024 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 22nd Response In its April 22, 2024 response, the Town advised Mr. Biernbaum it had already responded to “this request on Wednesday, December 6, 2023, after the requester first made this request on Tuesday, November 21, 2023. … Since this December 2023 response, we have no more responsive documents to disclose.” Current Appeal In correspondence included with his appeal petition, Mr. Biernbaum contends that his “December 6 request covered a different time period and noted earlier communications from [Town Counsel] stating that they would continue to search for more responsive records in the personal/work emails of the Moderator and Assistant Moderators (who routinely use their personal/work emails in lieu of their Town ones), and that no response on that topic has ever been delivered (for either request).” Possession, Custody, or Control The Town is advised that 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). Additionally, 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). Based on the Town’s response, it is unclear whether the Town possesses additional records responsive to Mr. Biernbaum’s request. If the Town does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”).

Ben Kaufman SPR24/1273 Page 3 May 9, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. Biernbaum with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Lee Biernbaum