Frank McGinn v. Shutesbury, Town of (SPR 20243257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2024 SPR24/3257 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Frank McGinn appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2024, Mr. McGinn requested “copies of all records in the Town’s possession regarding or referencing the Shutesbury Athletic Club’s liquor liability insurance, and any other insurance of the Club, from September, 2017, until now.” Previous Appeal This request was the subject of a previous appeal. See SPR24/3010 Determination of the Supervisor of Records (November 8, 2024). In my November 8th Determination, I learned that the Town intended to provide a supplemental response. The Town responded on December 2, 2024, providing responsive records to the request. Unsatisfied with the Town’s response, Mr. McGinn petitioned this office and this appeal, SPR24/3257, 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

Grace Bannasch SPR24/3257 Page 2 December 18, 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 December 2nd Response In its December 2, 2024 response, the Town provided records responsive to the request. In its response, the Town states, “[t]he records we have only go back to 2021. The Administrative Secretary reached out to the insurance company and learned that they only retain records for 2 years as well. The Administrative Secretary could not find any additional records beyond what was provided in our custody.” In an email to this office on December 7, 2024 and while this appeal was pending, the Town confirmed that it provided all records responsive to the request. The Town states, “I checked back in with the record custodians (Town Admin and Administrative Secretary, in this instance, and I also reached out to the former Administrative Secretary just in case) and they confirmed again that they conducted an exhaustive records search and the Town has no additional records to provide at this time.” Proper Retention Protocol 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). Where the Town states, “they only retain records for 2 years . . .[,]” it remains unclear whether responsive records existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). I find that the Town must demonstrate whether it followed proper records retention protocol. Please note, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. Conclusion Accordingly, the Town is ordered to provide Mr. McGinn with a response to the request, 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.

Grace Bannasch SPR24/3257 Page 3 December 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Frank McGinn