Stephen Darcy v. Marshfield, Town of - (SPR 20250082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2025 SPR25/0082 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Stephen Darcy appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Mr. Darcy requested, “[a]ll emails, text messages and written communications sent to any member of the Board of Public Works or sent by any member of the Board of Public Works related to the pole hearing for Wilson Road. This is to include [a specified private email address]…” Prior Appeal This request was the subject of a prior appeal. See SPR24/3219 Determination of the Supervisor of Records (December 11, 2024). In my December 11th determination, I found that the Town must clarify whether responsive records exist from [a named individual] who appears to have created public records on a private Gmail account. The Town provided a response on December 26, 2024. Unsatisfied with the Town’s response, Mr. Darcy petitioned this office and this appeal, SPR25/0082, 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 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

Michael A. Maresco SPR25/0082 Page 2 January 22, 2025 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 December 26th Response In its December 26, 2024 response, the Town stated, “I am writing to let you know that [a named individual] has refused to respond to my request on behalf of Mr. Darcy. It has now been beyond (10) days… Mr. Darcy has been notified that [a named individual] has not turned over any information requested.” Current Appeal In the appeal petition, Mr. Darcy states, “[e]ven though we have clear evidence that [a named individual] used his private email address to send a message to the private email address of the Superintendent of the Department of Public Works concerning a matter before the Board of Public Works, [a named individual]’s representation disrespectfully and unprofessionally referred to this FOIA request as a ‘fishing expedition’.” 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In this case, where the responsive recording was created in furtherance of Town business, the Town has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Conclusion Accordingly, the Town is ordered to provide Mr. Darcy 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. Mr.

Michael A. Maresco SPR25/0082 Page 3 January 22, 2025 Darcy may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Stephen Darcy