Paul R. DeRensis v. Brookline, Town of - Town Counsel (SPR 20252057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2025 SPR25/2057 Jonathan Simpson, Esq. First Assistant Town Counsel Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Attorney Simpson: I have received the petition of Paul DeRensis, Esq., of Brooks and DeRensis, P.C., appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2025, Attorney DeRensis requested the following: [1] Please explain who is the individual complaining, by name and position if any, and who in the town received such complaint, again by name and position[;] [2] [A] copy of the full complaint…please also supply a copy of all documents of the Town whether emails, correspondence or communications to those outside the town, or internal to the town, that reference or describe that complaint against [an identified individual], and to the extent such documents exist, please also advise what the town’s reasoning was not to maintain confidentiality with respect to the complaint and the identity of the party complained of[;] [3] Please identify by name the person who was responsible in the Town for making the determination that the complaint rose to the level that an investigation should be undertaken, please identify all persons who were consulted or provided input into the decision and please explain what care and attention that decision making person undertook to look into relevant federal and state law applicable to this specific complaint before the determination was made that this could rise to the level of warranting an investigation[;] [4] [I]dentify in detail what was “unethical” with reference to the fact alleged in your letter…[;] 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

Jonathan Simpson, Esq. SPR25/2057 Page 2 July 24, 2025 [5] [P]rovide a citation to each charter provision, law, regulation, and/or town policy that you are alleging [an identified individual] violated[;] [6] [P]rovide a list of other Legislative Branch town meeting members who, prior to these allegations, have actually been found by the Executive Branch of the town government to be in violation of “unethical” standards by reasons of props used during deliberations at Brookline Town Meeting, and what were the consequences thereof, so that we know what the precedents have been for this investigation[;] [7] [I]dentify the law, regulation, policy, charter provision, or other authority or caselaw under which the membership of Legislative Branch of Town government is subject to investigation and possible consequences from the Executive Branch of Brookline town government related to deliberations at town meeting[;] [8] [A] copy of the Town[’s] referenced strict anti-retaliation policies, and … copies of any policies of the Town that prohibit retaliation against any person for engaging in conduct protected under the First Amendment to the U.S. Constitution[;] [9] [A] copy of the [T]own’s insurance policies relevant to coverage applicable to complaints against town meeting members regarding the content of their deliberations at town meeting. The Town responded on June 25, 2025. Unsatisfied with the response, Attorney DeRensis petitioned this office and this appeal, SPR25/2057, 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. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a

Jonathan Simpson, Esq. SPR25/2057 Page 3 July 24, 2025 records custodian must provide the responsive records. The Town’s June 25th Response On June 25, 2025, the Town provided Attorney DeRensis with responsive records and stated the following: ... On May 23, 2025 … an employee verbally alleged to the Town Administrator … that [a photo] violated the Massachusetts Conflict of Interest Law. After informing the Select Board, and consulting with both the Office of Town Counsel & Human Resources Department, the Town Administrator deferred opening any investigation until after Town Meeting … … the Town Administrator referred the matter for investigation by an independent third party … the investigator is looking into whether violations of M.G.L. ch. 268A occurred. The Town is empowered to investigate and address violations of this particular law with respect to current employees … and has done so as a matter of past practice. … The Town is self-insured and does not provide coverage to appointed officials acting outside of the scope of their employment. Current Appeal In his July 15, 2025 petition to this office, Attorney DeRensis stated, “[o]n June 25, 2025, the Town of Brookline provided a written response via email.... However, as of today, the Town has not provided documents responsive to requests (2), (6) and (9) and more than ten days have elapsed without a single record being presented.” Based on Attorney DeRensis’ petition and the Town’s response, it is unclear whether the Town possesses additional responsive records. Specifically, the Town must clarify whether it possesses records responsive to Items 2, 6, and 9 of Attorney DeRensis’ request. 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). Consequently, the Town must clarify whether it possesses additional responsive records. Conclusion Accordingly, the Town is ordered to provide Attorney DeRensis 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

Jonathan Simpson, Esq. SPR25/2057 Page 4 July 24, 2025 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Attorney DeRensis 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: Paul DeRensis, Esq.