Eileen W. Mooney v. Great Barrington, Town of - Office of the Town Clerk (SPR 20243248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2024 SPR24/3248 Josh Risen Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Mr. Risen: I have received the petition of Eileen W. Mooney appealing the response of the Town of Great Barrington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2024, Ms. Mooney requested “[the] Board of Assessors’ book listing abatements as described in MGL 59 Section 60.” The Town provided responses on November 18 and November 25, 2024. Unsatisfied with the Town’s responses, Ms. Mooney petitioned this office and this appeal, SPR24/3248 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. 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. 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

Josh Risen SPR24/3248 Page 2 December 16, 2024 The Town’s November 18th and November 25th Responses In its November 18, 2024 response, the Town provided Ms. Mooney with a spreadsheet entitled “FY24 Abatement Request.” On November 24, 2024, Ms. Mooney inquired whether the responsive record was complete, and requested “… the year in which the tax was assessed and the total tax.” In its November 25, 2024 responses, the Town informed Ms. Mooney that the remaining responsive records were related to executive session and therefore “… not open to the public.” Upon further inquiry from Ms. Mooney, the Town stated that “Abatement Applications Are Not Public” and cited G. L. c. 59, § 60 in support of that assertion. Current Appeal In her December 3, 2024 appeal petition, Ms. Mooney states that she is “… not requesting any application, only the information listed as required in the ‘book’ maintained by the assessors and open to the public.” Based on the Town’s responses, it appears the Town intends to withhold records from disclosure. 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”). Further, based on Ms. Mooney’s petition and the Town’s responses, it is unclear what additional responsive records the Town possesses. 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Mooney 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. Ms. Mooney may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Josh Risen SPR24/3248 Page 3 December 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Eileen W. Mooney Ross Vivori