Holly McNamara v. Somerset, Town of - Town Clerk (SPR 20251313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2025 SPR25/1313 Caitlin Hadala Town Clerk Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Ms. Hadala: I have received the petition of Holly McNamara appealing the response of the Town of Somerset (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 17, 2025, Thomas J. Mello requested the following: 1. Any and all documents including but not limited to Election Ballots, Election Absentee Ballots with Envelopes, Early Election Voting Ballots with any envelopes, any Drop off Ballots with Envelopes, and any other Ballots that were mailed to the Somerset town hall. 2. Clerk’s Book, any and all tally sheets for each Precinct, and the voter’s list containing names and addresses of persons who voted in the election. 3. The one block of votes ballots, sealed in a mylar bag by poll workes as part of the election closing procedures, that was returned to the Clerk’s office in a supplies container rather than in the sealed ballot box; as mentioned in your email dated on April 15th, 2025 04:36 PM, 2nd to last paragraph stating, “Finally . . . box.” 4. Any and all video’s that were video recorded inside and outside the town hall building located at 140 Wood Street, Somerset, MA 02726 during Early Voting days on April 7, 8, and 9th, 2025 from the hours of 8:00 am to 5:00 PM. 5. Any and all video’s that were video recorded inside and outside the polling place including the voting area, known as the cafetetia, located at the Somerset Berkley High School located at 625 County Street, Somerset, MA 02726 during Election Day on April 14th, 2025 from the hours of 11:30 am to 8:30 pm. [sic] The Town responded by an undated letter to Mr. Mello. Unsatisfied with the Town’s response, Ms. McNamara petitioned this office, and this appeal, SPR25/1313, was opened as a 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

Caitlin Hadala SPR25/1313 Page 2 May 23, 2025 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. Current Appeal In her appeal petition, Ms. McNamara argues that “the town administrator has released video footage to other residents before but is evasive when it comes to this specific request.” Subsequent to the opening of this appeal, in an email to this office on May 12, 2025, Ms. McNamara further argues the following: Tom Mello, in his original records request . . . also had requested to view the absentee ballots and signatures. You will see this listed in items 1, 2, and 3 in his original request. The reason why we are flagging this is because Tom was told by a police officer who worked at the polls that evening of election day that he observed that most of the signatures of the absentee ballots appeared to be identical. The Town’s Responses In its response to Mr. Mello, the Town provides multiple responsive records, and indicates that it is withholding others pursuant to numerous statutes as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). In its response, the Town explains the following: While you did not specifically request the same, the so-called EV20 report and

Caitlin Hadala SPR25/1313 Page 3 May 23, 2025 AV20 report are public records, and I have enclosed the same for your convenience. They show who requested an early voting or absentee ballot, who was sent an early voting or absentee ballot, and who returned an early voting or absentee ballot. In response to the request in the first sentence of Paragraph 2, above, I have enclosed the voter check-in report from the Poll Pads from the Annual Town Election. See G.L. c. 54, § 109. These materials are being provided to you free of charge for this time only. Item 1, 2, and 3 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Town cites numerous statutes, which provide in pertinent parts as follows: The city or town clerk or a person designated by him shall open each envelope purporting to contain an official absent voting ballot as soon as possible after receiving it, in the view of any persons who may be present. He shall remove therefrom the inner envelope provided for in clause (c) of the first paragraph of section eighty-seven and, without opening such inner envelope, compare the signature thereon with the signature on the application therefor, except if a family

Caitlin Hadala SPR25/1313 Page 4 May 23, 2025 member signed the application or if the voter received assistance in signing the application or the envelope, and examine the affidavit on each such envelope. If he finds that such affidavit has been improperly executed, or does not sufficiently indicate that the ballot was marked and mailed or delivered as required by sections ninety-two and ninety-three, or except as provided in the preceding sentence was not signed by the person who signed the application therefor, he shall mark across the face thereof “Rejected as defective”, and shall place on the absent voting disposition list required by section ninety-one or section ninety-one A, as the case may be, opposite the name of the voter the capital letter R. Each envelope, so marked, all applications for absent voter ballots and all lists referred to in this section shall be preserved and destroyed in the manner provided by law for the retention, preservation or destruction of official ballots. If he does not mark the envelope “Rejected as defective”, he shall mark a check against the name of the voter on the absent voting disposition list required by section ninety- one or section ninety-one A, as the case may be. Said clerk, or such person, shall record on tally sheets prepared and furnished by the state secretary all envelopes, as well as accepted or rejected ballots of absent voters; and, in cities and towns divided into voting precincts, a separate record shall be made for each precinct. G. L. c. 54, § 94. The counted ballots, both absentee and other, shall be sealed in separate envelopes and shall be transmitted, in accordance with the provisions of section one hundred and seven, to the office of the city or town clerk forthwith. The voting lists shall also be sealed in separate envelopes and transmitted to the office of the city or town clerk. The voting lists and all ballots removed from the ballot box shall be kept in open view of the voters present until enclosed and sealed up, or until locked in containers for transport to the tabulation center, and there shall be no adjournment or postponement of the proceedings at the polling place until all such proceedings have been completed and the ballots or ballot cards transmitted to the tabulation center. Sealed and locked ballot or card carrying cases shall be under the constant control and supervision of the precinct warden and clerk and accompanied by police guard during the transportation of said ballot or card carrying cases to the tabulation center, within or outside the municipality. G. L. c. 54, § 105A. The presiding officer at every polling place at elections of state and city officers and of town officers in towns where official ballots are used shall, after the record of the counting has been made, cause all ballots cast to be publicly enclosed in an envelope or container and sealed up with a seal of durable material provided

Caitlin Hadala SPR25/1313 Page 5 May 23, 2025 therefor and also with the private seal of any election officer who may desire to affix the same. Seals for containers may be of material used in such manner as to effectively lock the container, or the container may be tied up lengthwise and crosswise with heavy twine securely tied and with the knot sealed with stationer's sealing wax. The warden and the clerk of the voting precinct, polling place or town shall endorse upon such envelope or container the polling place, the election and the date, and also a certificate that all the ballots cast by the voters of such precinct, polling place or town, and none other, are contained therein. He shall cause all ballots not cast to be enclosed in an envelope or container and sealed up as aforesaid, and shall certify on the envelope or container the contents thereof. Such presiding officer shall cause the voting lists to be enclosed in an envelope and sealed up as aforesaid, and the warden and the clerk shall certify thereon to the identity of the voting lists enclosed. He shall forthwith personally deliver to the city or town clerk or transmit to him, by the police officer or constable in attendance at the election, all the ballots cast, and not cast, the voting lists, the ballot box, the ballot box seals and counting apparatus. This section shall not apply to ballots used in any approved electronic voting system which requires the transmittal of said ballots to a tabulation center. G. L. c. 54, § 107. City and town clerks shall retain in their custody the envelopes or containers containing the ballots cast, without examining them or permitting them to be examined by any person except as required by law, and upon the expiration of the period fixed for their preservation shall cause such ballots to be destroyed. City and town clerks shall retain in their custody the voting lists as long as they retain the ballots cast. They shall then transmit such voting lists to the registrars of voters, and shall destroy the ballots marked “Spoiled”, without examining them or permitting them to be examined. Such voting lists shall be preserved by the registrars of voters for reference for two years after the expiration of which they may be destroyed. City and town clerks shall retain in their custody ballots not cast for 30 days or until any contest is determined or claim is withdrawn under section 134, and shall then make such disposition of the ballots not cast as they consider proper. G. L. c. 54, § 109. In its response, the Town argues the following: All records responsive to your requests in Paragraph 1, the request for tally sheets in Paragraph 2, and all your requests in Paragraph 3 will be withheld from disclosure pursuant to Exemption (a) of the Public Records Law. In SPR97/798, Supervisor of Public Records Advisory Opinion to Revere City Clerk Sherri

Caitlin Hadala SPR25/1313 Page 6 May 23, 2025 Botticelli (January 29, 1998) (“SPR97/798”), the Supervisor concluded that the General Laws require virtually all election records to be sealed and, unless otherwise required by law, destroyed without examination. The relevant statutes are as follows: G.L. c.54, §107 (sealing of cast ballots, unused ballots, spoiled ballots); G.L. c.54, §94 (sealing of defective ballots, spoiled and rejected ballots, related envelopes, and absentee ballot disposition sheets); G.L. c.54, §109 (sealing of envelopes or containers containing ballots cast, spoiled ballots and unused ballots); G.L. c.54, §§105A, 107 and 109, and 950 CMR 53.04(22) (sealing of tally sheets). Based on the information provided in the Town’s response, the Town has explained that the withheld records are the types of records contemplated under the statutes cited above. Accordingly, I find that the Town has met its burden to withhold the records responsive to Items 1, 2 and 3 of the request pursuant to the statutes cited above as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Items 4 and 5 Records in Existence; Possession, Custody, or Control With regard to Items 4 and 5 of the request, in its response, the Town states the following: Please be advised that the Town Clerk and Board of Registrars have no records responsive to your request for copies of any videos as requested in Paragraphs 4 and 5 that may have been recorded at the Town Hall during early voting, or at the Somerset Berkley High School on election day. I have forwarded your request for these items to the Town Administer, and the School Department, respectively. 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, 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). Based on the Town’s response, it is unclear whether the Town possesses records responsive to Parts 4 and 5 of the request. If the Town does possess 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”).

Caitlin Hadala SPR25/1313 Page 7 May 23, 2025 Conclusion Accordingly, the Town is ordered to provide Ms. McNamara with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. McNamara may further 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: Holly McNamara