Commonwealth Transparency v. Georgetown, Town of - Town Clerk (SPR 20241353)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2024 SPR24/1353 Kerri McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Town of Georgetown (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: … 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…. In an April 8, 2024 email to the requestor, the Town asserted, “[w]e have no records responsive to this request.” On April 11, 2024, the requestor modified the parameters of the request, and sought “…document/records in the possession of under the control of your school… for the time period between January 1, 2016 through April 5, 2024.” Claiming to not yet have received a response to the modified request, the requestor petitioned this office and this appeal, SPR24/1336, 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

Kerri McManus SPR24/1353 Page 2 May 16, 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. Where the April 11th modified request expands the time period to include the years 2016 and 2017, it is unclear if the Town possesses any records responsive to the request. 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 whether records responsive to the modified request exist. 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 Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth