Stephen Darcy v. Marshfield, Town of - (SPR 20243219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3219 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Stephen Darcy appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Mr. Darcy requested, “[a]ll emails, text messages and written communications sent to any member of the Board of Public Works or sent by any member of the Board of Public Works related to the pole hearing for Wilson Road. This is to include [a specified private email address]…” The Town provided a response on October 28, 2024. Unsatisfied with the Town’s response, Mr. Darcy petitioned this office and this appeal, SPR24/3219, 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 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. 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

Michael A. Maresco SPR24/3219 Page 2 December 11, 2024 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 October 28th Response In its October 28, 2024 response, the Town stated, “[u]nfortunately I don’t have any emails regarding this on my work email.” Current Appeal In the appeal petition, Mr. Darcy states the following: The reason I am requesting documents from [a named individual]’s private email is because I have evidence that he is using his private email to circumvent public records laws. I have attached a document that shows [a named individual] emailing the private email address for the Superintendent of the DPW pertaining to a matter before the Board of Public Works. … The reason I originally filed the FOIA request, and am now appealing the denial, is because I think it is wrong for [a named individual] to try to circumvent public records laws. G. L. c. 66, § 10 (a) requires, “(a) A records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that: (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves.” Also, please see G. L. c. 66, § 13 which states as follows: Whoever is entitled to the custody of public records shall demand the same from any person unlawfully having possession of them, who shall forthwith deliver the same to him. Upon complaint of any public officer entitled to the custody of a public record, the superior court shall have jurisdiction in equity to compel any person unlawfully having such record in his possession to deliver the same to the complainant. G. L. c. 66, § 13. Except as otherwise provided by law, all public records shall be kept in the custody of the person having the custody of similar records in the county or municipality to which the records originally belonged; provided, however, that the

Michael A. Maresco SPR24/3219 Page 3 December 11, 2024 custodian of public records may enter into a contract for the storage of records containing public record information, but no contract for the storage of public records shall be entered into if the contract prevents or unduly restricts a records access officer or custodian of records from providing or storing the records in accordance with this chapter. Records not directly in the custodian’s possession shall be considered in the custody of the custodian if subject to a contract for the storage of public records that is permitted by this section. If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian. A person who refuses or neglects to perform any duty required by this section shall be punished by fine of not more than $20. G. L. c. 66, § 17. Consequently, the Town must clarify whether responsive records exist from [a named individual] who appears to have created public records on a private Gmail account. Conclusion Accordingly, the Town is ordered to provide Mr. Darcy with a response to the 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. The requestor may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Stephen Darcy