David Durgin v. Dudley, Town Of - Town Clerk (SPR 20242911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2911 Jonathan Ruda Town Administrator Town of Dudley 71 West Main Street Dudley, MA 01571 Dear Mr. Ruda: I have received the petition of David Durgin appealing the responses of the Town of Dudley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 16, 2024, Mr. Durgin requested: [1] Concept memorandum for Eagle Dr. as mentioned in the 7/10/24 water sewer meeting… [2] Copy of the wage rate study… [3] Copy of former TA … contract the year he retired. The Town responded on July 18 and July 30, 2024. Unsatisfied with the Town’s responses, Mr. Durgin petitioned this office, and this appeal, SPR24/2911, 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. 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 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

Jonathan Ruda SPR24/2911 Page 2 November 4, 2024 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 July 18th and July 30th Responses In its July 18, 2024 response, the Town acknowledged receipt of Mr. Durgin’s request for records. In its July 30, 2024 response, the Town provided records to Mr. Durgin. Current Appeal In his appeal, Mr. Durgin states that the Town provided the wrong documents. After several emails informing the Town of this, Mr. Durgin never received the requested documents. 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). In light of Mr. Durgin’s claim, I find the Town must clarify if it possesses records responsive to Mr. Durgin’s request. If the Town does possess 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. Conclusion Accordingly, the Town is ordered to provide Mr. Durgin 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: David Durgin