Geraldine Mullaly v. Swansea, Town of - Town Clerk (SPR 20243333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3333 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (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, Ms. Mullaly requested “... [a] copy of the completed/signed acknowledgement form/code of conduct and discipline policy for [an identified individual], Swansea Tree Warden.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/3223 Determination of the Supervisor of Records (December 10, 2024). In my December 10th determination, I ordered the Town to provide Ms. Mullaly with a response to her request. The City provided a response on December 11, 2024. Unsatisfied with the response, Ms. Mullaly petitioned this office and this appeal, SPR24/3333, 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 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

Diane Pelland SPR24/3333 Page 2 December 23, 2024 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 11th Response In the Town’s December 11, 2024 response, the Town provided the requested records. Current Appeal In her appeal, Ms. Mullaly asserts, “[r]ecords provided [were] not those requested in December 13, 2024 [sic] public record request. Appeal requesting receipt of [an identified individual]’s completed code of conduct and discipline policy form bearing a signature which is not obfuscated...[A]s [identified individual]’s signature is illegible, there is no way to verify the document was completed/signed by him based on similarities between print and cursive form.” Based on Ms. Mullaly’s appeal, in conjunction with the Town’s response, it is unclear if the Town possesses any records showing a clear signature for the identified individual. 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). However, 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 the requested records exist. Conclusion Accordingly, the Town is ordered to provide Ms. Mullaly 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. Mullaly may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Diane Pelland SPR24/3333 Page 3 December 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly