Jason Poulos v. Sherborn, Town of (SPR 20241506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1506 Jacklyn R. Morris Town Clerk Town of Sherborn 19 Washington Street Sherborn, MA 01770 Dear Ms. Morris: I have received the petition of Jason Poulos appealing the response of the Town of Sherborn (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2024, Mr. Poulos requested “a copy of the complete report, including all exhibits, titled ‘INVESTIGATION OF COMPLAINT, FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS,’ produced by [a specified individual and law firm] dated August 17, 2020.” The Town responded on May 16, 2024, providing the responsive records in redacted form, and claiming the redacted portions are exempt from disclosure pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the Town’s response, Mr. Poulos appealed, and this case 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 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

Jacklyn R. Morris SPR24/1506 Page 2 June 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. Pending Litigation While this appeal was pending, the Town provided a supplemental response to this office and Mr. Poulos on May 20, 2024. In its May 20th response, the Town explains that “the requested investigation report is related to active litigation currently pending in Middlesex Superior Court.” 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Mr. Poulos’s request, is active and ongoing in the Middlesex Superior Court. See Richard Thompson v. Town of Sherborn, (Superior Court Docket No. 2182CV01004). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Jason Poulos