Sean Burke v. Milton, Town of - Town Clerk (SPR 20241999)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2024 SPR24/1999 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Sean Burke 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 May 7, 2024, Mr. Burke requested, “any communication between the Commission on Disabilities and any experts or 3rd parties that reviewed the Lower Gile Road project for ADA compliance, any reports generated, and any findings reported.” Additionally, on May 9, 2024, Mr. Burke added to his request and sought “meeting minutes, approved or draft if they are not approved, from Disability Commission meetings held between 2022 and 2024.” The Town provided Mr. Burke with a response on May 21, 2024. Unsatisfied with the Town’s response, Mr. Burke petitioned this office and this appeal, SPR24/1999, 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 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 M. Galvin SPR24/1999 Page 2 July 26, 2024 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 May 21st Response On May 21, 2024, the Town stated, “[t]his letter is to clarify what information that you are seeking from the Town of Milton. If you would like for the Town of Milton to proceed with your public information request, please provide clarifications within sixty-one (61) days from 05/21/2024. Otherwise, the Town of Milton will consider your request withdrawn.” On June 3, 2024, Mr. Burke responded to the Town and stated, “[m]y request for meeting minutes, approved or draft (if they are not approved), from Disability Commission meetings held between 2022 and 2024 should be fairly clear. In addition, the Commission on Disability Commissioner has made a public statement that ADA compliance for the lower gile field has been reviewed by a third party. I am requesting any communications between any members of the Commission on Disability and 3rd party reviewers related to ADA access to town fields.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Burke submitted his amended request on May 9, 2024, and provided clarification on June 3, 2024, it is unclear why the Town has not provided the responsive records. 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). 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).

Susan M. Galvin SPR24/1999 Page 3 July 26, 2024 Consequently, I find the Town must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Burke 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. Sincerely, Manza Arthur Supervisor of Records cc: Sean Burke