Geraldine Mullaly v. Swansea, Town of - Town Clerk (SPR 20243425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3425 Mallory E. Aronstein Town Administrator Town of Swansea Town Hall 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: 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 August 11, 2024, Ms. Mullaly requested the following: [1.] The document submitted to Town Counsel as a result of the motion made, seconded, voted, and approved at 07/30/2024, Capital Building Committee meeting. . . . [2.] The document forwarded to [a named individual] by Town Counsel in response to the inquiry in bullet #1, [3.] If the inquiry was made via telephone, please provide a copy (copies) of transcript(s) of the conversation(s) with proof of date(s), time(s), and question(s) asked/answered. [4.] Any document submitted to Town Counsel to seek Town Counsel’s opinion on whether the Committee can approve the use of any funds appropriated in 05/20/2024 STM Article 4 for site planning/design/septic &/or water sketches/ et al for Option 3 (New construction of Town Hall at 68 Stevens Road). [5.] Any document forwarded to [the named individual] by Town Counsel in response to the inquiry in bullet #4, [6.] If the inquiry was made via telephone, please provide a copy (copies) of transcript(s) of the conversation(s) with proof of date(s), time(s), and question(s) asked/answered. 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

Mallory E. Aronstein SPR24/3425 Page 2 January 7, 2025 Previous Petition and Appeal This request was the subject of a previous petition from the Town and a previous appeal. See SPR24/2369 Determination of the Supervisor of Records (August 27, 2024) and SPR24/2479 Determination of the Supervisor of Records (September 17, 2024). In my September 17th determination, I ordered the Town to identify any responsive records that may be in its possession, and to clarify its claims under the attorney-client privilege if it was withholding records. Subsequently, the Town responded on September 27, 2024. Unsatisfied with the Town’s response, Ms. Mullaly petitioned this office, and this appeal, SPR24/2479, 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. The Town’s September 27th Response In its September 27, 2024 response, the Town indicates that it does not possess records responsive to the request. Current Appeal In her appeal petition, and in additional correspondence to this office on December 24, 2024, Ms. Mullaly refers to various invoices and records she has received in response to other requests, and argues, among other things, the following: If no records exist, we only have the “word” of [the Town Administrator] and Town Counsel that the Capital Building Committee’s request for “use of the services of the Town Counsel.” was reviewed, approved, submitted to Town

Mallory E. Aronstein SPR24/3425 Page 3 January 7, 2025 Counsel (records?), researched/determination rendered by Town Counsel, and decision shared with the Town Administrator and Board of Selectmen (records?) [sic] Additionally, Ms. Mullaly raises concerns about “variations of [the] Town Administrator’s responses.” Records in Existence Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). In its September 27th response, the Town confirms for each of the six items of the request that “no such records exist.” Conclusion Where the Town confirmed that it does not possess records responsive to Ms. Mullaly’s request, I will now consider this administrative appeal closed. If Ms. Mullaly is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly