Carey Goldberg v. Brookline, Town of - Town Counsel (SPR 20242525)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2024 SPR24/2525 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street Brookline, MA 02445 I have received the petition of Carey Goldberg 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 May 29, 2024, Ms. Goldberg requested the following: [C]opies of any and all texts, emails, and other written correspondence to or from [the] Brookline Public Schools Superintendent ... pertaining to or relating in any way to the written statements that were published or caused to be published by or on behalf of [the] Superintendent ... from Oct. 7 through Oct. 14, 2023, in response to and following the October 7, 2023 Hamas attack on Israel. Previous Appeals This request was the subject of previous appeals. See SPR24/1811 Determination of the Supervisor of Records (July 5, 2024) and SPR24/2164 Determination of the Supervisor of Records (August 13, 2024). In my August 13th determination, I ordered the Brookline Public Schools (School) to clarify whether it possessed additional responsive records, and to clarify what exemptions the School was claiming in order to redact or withhold records. Subsequently, the Town of Brookline responded on August 30, 2024. Unsatisfied with the Town’s response, Ms. Goldberg petitioned this office, and this appeal, SPR24/2525, 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). 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 SPR24/2525 Page 2 September 20, 2024 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. 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. Current Appeal In her appeal petition, Ms. Goldberg contends the following: Brookline Town Counsel goes to great lengths to make a convoluted grammatical argument about my records request. But he never addresses the insufficiencies in the Town’s response to that request ... and that leave the Town in violation of the law. Specifically: 1) The Town has not provided all records that are responsive to my request. I know this to be true because (a) I have records in my possession that were provided to me by others; and (b) the one responsive document refers to a shared Google doc and an attachment, both of which would be responsive but neither of which are provided. 2) The Town has not provided reasons for withholding documents. 3) The Town has not provided reasons for any of the redactions on the single responsive document provided. The Town’s August 30th Response In its August 30, 2024 response, among other things, the Town states that “there was only one responsive document, which we produced on July 25.” The document previously provided by the Town includes numerous redactions. Possession, Custody, or Control; Superior Knowledge of the 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). 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).

Ben Kaufman SPR24/2525 Page 3 September 20, 2024 In its August 30th response, an attorney for the Town states the following: You include as part of your appeal an email sent to the Superintendent, dated October 12, and with a subject line “Re: Israel.” This email would not be responsive to your request as we understood it. We understood your request “[i] copies of any and all texts, emails, and other written correspondence [ii] to or from Brookline Public Schools Superintendent Linus Guillory [iii] pertaining to or relating in any way to [iii] the written statements that were published or caused to be published by or on behalf of Superintendent Guillory [iv] from Oct. 7 through Oct. 14, 2023, [v] in response to and following the October 7, 2023 Hamas attack on Israel.” We understood the fourth element, “from Oct. 7 through Oct. 14, 2023,” as describing the third element, statements “by or on behalf of” the Superintendent. The Superintendent made only one published statement during that period about the fifth element. We reached this conclusion because of the grammatical concept that descriptive phrases should describe their antecedent, in other words, the thing before. In this case, where Ms. Goldberg provided a specific date range for the records she is seeking, and did not break down her request into the separate numbered elements inserted by the Town, and provided the Town with a sample of the type of correspondence she is seeking, it remains unclear whether the Town possesses additional responsive records for the date range provided in the request. The Town must use its superior knowledge of the records, and clarify whether it possesses additional records. If the Town does possess additional responsive records, it must either provide them, 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). Burden of specificity As in the earlier July 25, 2024 response, the Town’s August 30th response did not contain the specificity required in a denial of access to public records. Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Town’s August 30th response, it remains unclear which exemption or exemptions the Town is citing in order to redact the record it provided. The Town must clarify this. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Ben Kaufman SPR24/2525 Page 4 September 20, 2024 Conclusion Accordingly, the Town is ordered to provide Ms. Goldberg 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: Carey Goldberg Joseph Callanan, Esq.