Thomas Henry v. Agawam, Town of - City Clerk (SPR 20243220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3220 Vincent Gioscia City Clerk Town of Agawam 36 Main Street Agawam, MA 01001 Dear Mr. Gioscia: I have received the petition of Attorney Thomas Henry, on behalf of Frank Gomez, appealing the response of the Town of Agawam (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2024, Mr. Gomez requested: [1] Any and all certified payrolls that … are in [your] possession … from any contractors performing Metal Framing, Drywall, Carpentry, Concrete, Acoustical Ceilings for the project... [2] Copy of the wage assignment sheet. (The wage rates set by law for this specific project) [3] Copy of any or all clerk logs and or daily reports submitted. The Town responded on November 22, 2024, providing responsive records to the request. Unsatisfied with the response, Attorney Henry petitioned this office and this appeal, SPR24/3220, 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

Vincent Gioscia SPR24/3220 Page 2 December 11, 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. The Town’s November 22nd response In its November 22, 2024 response, the Town provided a link to download (1) certified payrolls from generation drywall and Valley Concrete, and (2) prevailing wage rate sheets. Current appeal In his appeal petition, Attorney Henry states, “[t]he link contained some, but not all, of the documents requested by Mr. Gomez… Specifically, the link did not contain any wage assignment sheets, daily logs, and/or clerk logs…. The Town was notified of this deficiency that same day. To date, the Town has failed to provide all the records requested by Mr. Gomez…” Based on Attorney Henry’s appeal, it is unclear if the Town possesses additional records responsive to the request. 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). 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). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Attorney Henry 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: Attorney Thomas Henry