Seamus Hourihan v. Marblehead, Town of (SPR 20243209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2024 SPR24/3209 Kyle Wiley Records Access Officer Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Kyle Wiley: I have received the petition of Seamus Hourihan appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2024, Mr. Hourihan requested: … unaudited FY25 financial statements that have been prepared by the Finance department.… [T]hese statements are in the process of being submitted to the Town’s auditors. More specifically I am looking for the statements that are equivalent to the following page numbers in the Town’s FY23 ACFR report: Pages 27, 28, 29, 32, 35, 64, 87, 88, 89, 125, 2126, 127, 128, 129, 139, 140 The Town provided a response on November 26, 2024. Unsatisfied with the Town’s response, Mr. Hourihan petitioned this office and this appeal, SPR24/3209, 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. 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

Kyle Wiley SPR24/3209 Page 2 December 10, 2024 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 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 26th Response In its November 26, 2024 response, the Town states, “there are no records responsive to your request. The Finance Director has said that we are being audited for FY24 which just closed. The audit starts next week. All Annual Comprehensive Financial Reports (ACFR) are posted on the website under accounting at https://www.marblehead.org/accounting-office. The FY24 will not be completed until after the audit to be submitted to GFOA.” Current Appeal In his appeal, Mr. Hourihan states, “[m]y appeal is based upon the fact that these records do exist and that they are not exempted from disclosure.” In a telephone call between a staff attorney of the Public Records Division and the Town on December 6, 2024, the Town confirmed that there are no records responsive to the request. Conclusion Where the Town confirmed that it does not possess records responsive to Mr. Hourihan’s request, I will now consider this administrative appeal closed. If Mr. Hourihan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Seamus Hourihan