Brittany Orlando v. Plymouth, Town of (SPR 20243130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2024 SPR24/3130 Connor Anderson Archivist/Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Brittany Orlando appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2024, Ms. Orlando requested the following: Any and all internal and external communications, including but not limited to emails and Town of Plymouth website form submissions, from January 1, 2020 to present, related to the Town of Plymouth water quality, water quality sampling reports, any and all internal and external communications related to [a specified person and address], and/or insurance claims related to water quality at [the specified person and address]. The Town responded on November 19, 2024. Unsatisfied with the Town’s response, Ms. Orlando petitioned this office, and this appeal, SPR24/3130, 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

Connor Anderson SPR24/3130 Page 2 December 4, 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 November 18th Response In its November 18, 2024 response, the Town provides numerous records responsive to Ms. Orlando’s request. Current Appeal In her appeal petition, Ms. Orlando argues the following: Upon reviewing the document provided, I have found that several key pieces of information are missing or incomplete. Specifically, the following items are not included in the response I received: 1. Information regarding my insurance claim against the Town of Plymouth: The records I received do not contain any details related to the insurance claim I have filed against the Town, and internal communications within the Town regarding their discussions that lead to their determination on my claim, which I believe should be part of the public record and fall within the scope of my request. 2. Complaints regarding water quality from other Town of Plymouth residents: The records provided do not include any complaints about water quality issues submitted by other residents of the Town, even though such complaints should be readily accessible, including those filed through the Town of Plymouth’s official website form. Additionally, my own submissions via this form are missing from the provided records. 3. Internal communications regarding water quality within the Town of Plymouth: The records I received also do not include any internal communications, memos, or discussions between employees of the Public Works Department or any other Town officials related to water quality issues in the Town of Plymouth. Records in Existence; Possession, Custody, or Control Please be 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior

Connor Anderson SPR24/3130 Page 3 December 4, 2024 knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Town’s response, and the information provided in Ms. Orlando’s appeal petition, it is unclear whether the Town possesses additional records responsive to the request. If the Town does possess additional 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. 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”). Conclusion Accordingly, the Town is ordered to provide Ms. Orlando 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: Brittany Orlando