Steven Ballard v. Acton, Town of - Town Clerk (SPR 20181488)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 24, 2018 SPR18/1488 Eva Szkaradek Town of Acton 4 72 Main Street Acton, MA O1 720 Dear Ms. Szkaradek: I have received the petition of Attorney Steven Ballard appealing the response of the Town of Acton (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1 ). Specifically, on September 18, 2018, Attorney Ballard requested "a copy of each document created or produced at any time from January 2018, to the present date, and in the possession, custody or control of the government of the Town of Acton, meeting the following description: Any appraisals of the real estate parcels currently in the immediate vicinity of, or subject to any lease by, the KMart store located in the Kelley's Corner area of Acton, as well as any documents related to any such appraisals, including but not limited to any emails, letters, contracts, and other documents evidencing any application, request, response, and any other communication, to and from the Acton Board of Selectmen and the appraiser(s) contracted to conduct any such appraisals. I further request any agendas, draft minutes, approved minutes, and any other documents related to any public meeting of the Acton Board of Selectmen at which any such appraisal was the subject of deliberation." On October 2, 2018 and October 9, 2018, the Town provided responses to his request claiming the appraisal was exempt from disclosure pursuant to Exemption (i) of the Public Records Law and providing a fee estimate for the remaining categories of records. G. L. c. 4, § 7(26)(i); G. L. c. 66, § lO(b)(viii). Unsatisfied with the Town's responses, Attorney Ballard petitioned this office and this appeal, SPR18/1488, 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, § lOA(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Eva Szkaradek SPR18/1488 Page 2 October 24, 2018 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, § 1O (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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Compliance with the requirements ofp roviding a response While this appeal was pending, the Town provided another response on October 23, · 2018. In its October 23rd response, with respect the appraisal, the Town indicates that"[a ]fter completing its investigation into the value of the subject property, the Board of Selectmen voted to release the Appraisal to the public on October 15 (subsequent to the filing of the Request and the Appeal). Therefore, the Town considers the legal issues raised in Ballard's Appeal moot." With respect to the remaining categories of records, the Town indicates it is no longer intending to charge Attorney Ballard a fee for complying with this portion of his request. The Town additionally indicates that it "intends to search for and produce responsive records with ten (10) business days following the Supervisor's determination ... " Although the Town provided responses to Attorney Ballard's request, it is unclear whether the responses complied with all the requirements under the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) 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, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions of records that the agency or municipality intends to produce, and provide a detailed

Eva Szkaradek SPR18/1488 Page 3 October 24, 2018 statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § IO(b ). Despite the Town's October 2nd, 9111 , and 23rd responses, it remains uncertain how the Town complied with the criteria required of an RAO in providing a response to a public records request. See id. Based on its response, it is unclear what records the Town possesses which are responsive to the 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, § IO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). As such, the Town must provide a response to Attorney Ballard that provides additional information regarding whether the Town possesses responsive records without further delay. See G. L. c. 66, § IO(b)(iv) (a written response shall "identify any records, categories ofrecords 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 ... "); Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Open Meetings Law It appears portions of Attorney Ballard's records request are related to the release of Town selectmen meeting minutes, which raises issues that potentially invoke the Open Meeting

Eva Szkaradek SPRlS/1488 Page 4 October 24, 2018 Law. Although it appears Attorney Ballard may have already reached out to the Office of the Attorney General (AGO), given that an interpretation of the Open Meeting Law falls within the authority of the AGO, it is this office's recommendation that he contact the AGO should he seek a determination on this issue. See G. L. c. 30A, § 23. Order Accordingly, the Town is ordered to provide Attorney Ballard 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 this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Steven Ballard, Esq.