David Calhoun v. Plymouth, Town of - Town Manager (SPR 20200347)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor of Records March 2, 2020 SPR20/0347 Connor Anderson Archivist and Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of David Calhoun of Saxon Partners appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 6, 2020, Mr. Calhoun requested copies of: " ... the Zoning Board of Appeals (ZBA) hand notes and minutes, records of votes, and any documents provided to the members that evening during the February 5, 2020 meeting. [A]lso, a copy of the 48 Notice posted in Town [H]all for the meeting of February 5, 2020. Also we request the minutes of the ZBA where they voted and approved the minutes for the ZBA hearing of December 4, 2019." On February 21, 2020, the Town provided Mr. Calhoun with the responsive records. This same day, Mr. Calhoun petitioned the Supervisor of Records (Supervisor), seeking a copy of the "48 Notice" posted in Town Hall for the ZBA hearing of February 5, 2020. Mr. Calhoun informed this office that the "48 Notice" was the only record that was not provided to him. As a result, this appeal was opened. 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). Based on the Town's February 21st response, it is unclear if the Town possesses the "48 Notice" for the ZBA hearing for the February 5, 2020 meeting. See G. L. c. 66, § lO(b)(iv) (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 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

Connor Anderson SPR20/0347 Page 2 March 2, 2020 withholding, including the specific exemption or exemptions upon which the withholding is based ... "). A records access officer's duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). It is also unclear how the "48 Notice" for the ZBA hearing can be withheld from disclosure under an exemption to the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Mr. Calhoun with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: David Calhoun