Joe Diver v. Dalton, Town of (SPR 20251939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1939 Rebecca L. Whitaker Records Access Officer Town of Dalton 462 Main Street Dalton, MA 01226-1601 Dear Ms. Whitaker: I have received the petition of Joe Diver appealing the response of the Town of Dalton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 6, 2025, Mr. Diver requested: [1] Any and all emails sent, received and deleted in the email of [an identified individual] regarding the Police Budget from the dates of March 1, 2025 – Current[;] [2] Any and all email correspondence between [an identified individual] and the Chief of Police for Dalton, MA between the dates of March 1, 2025 – Current[;] [3] Any all emails sent, received and deleted in the email of [an identified individual] regarding the Dalton Police Department Chief, Operational Topics of Finance Topics to any town employee or town resident in his capacity as a Finance Committee Member up to and including any and all correspondence with prior Dalton PD officers, town management including the Town Manager and Town Accountant for the date range of March 1, 2025 - Current. The Town responded on June 26, 2025. Unsatisfied with the response, Mr. Diver petitioned this office and this appeal, SPR25/1939, 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 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

Rebecca L. Whitaker SPR25/1939 Page 2 July 11, 2025 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. 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 June 26th Response In its June 26, 2025 response, the Town provided records responsive to Items 1 and 2 of the request and stated that it did not possess records responsive to Item 3 of the request. Current Appeal In his July 3, 2025 petition to this office, Mr. Diver contended that records responsive to Item 3 of the request had been generated by a Town employee using a private email address. In a telephone conversation with this office on July 8, 2025, the Town stated that it was in the process of verifying whether responsive records existed outside of its possession. Duty to Demand Delivery The Town is advised that 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, insofar as the requested records were 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. Diver 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.

Rebecca L. Whitaker SPR25/1939 Page 3 July 11, 2025 Diver may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joe Diver