Dan Bell v. Lincoln, Town of - Town Clerk (SPR 20201714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2020 SPR20/1714 Jared LaLiberte Town of Lincoln 16 Lincoln Road, 1st Floor Lincoln, MA 01773 Dear Mr. Laliberte: I have received the petition of Dan Bell, Esq. appealing the response of the Town of Lincoln (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 3, 2020, Attorney Bell requested: Any and all documents received by or sent from the Lincoln Zoning Board of Appeals, Planning Board, Select Board, Conservation Committee, and all Town of Lincoln employees or consultants to [two identified individuals], and/or their attorney or other representative from August 20, 2019 to the date of your response to this Request which related in any way to any use of the [identified individuals’] property . . . The term “documents” includes, but is not limited to, electronic or written letters, emails, records of telephonic or in-person conversations, minutes, drawings, maps, forms, applications, meeting notices, licenses, reports, authorizations, third party requests and responses, drafts of meeting minutes, and meeting minutes. . . . The Town provided responses on August 5, 2020 and August 6, 2020. Claiming to not have received responses from all the Boards and Committees, Attorney Bell petitioned this office and this appeal, SPR20/1714, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Bell’s purpose in making the request has no bearing on the public 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

Jared LaLiberte SPR20/1714 Page 2 September 30, 2020 status of any existing responsive records. 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 town 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 the Town’s August 5, 2020 response, the Planning Board indicated that it did not possess responsive records. On August 6, 2020, the Board of Health provided responsive records in its possession, but the Zoning Board of Appeals indicated that it did not possess responsive records. In his appeal petition, Attorney Bell states “[t]he Request specifically target five Town Boards and Committees: three responded; two ignored the request. The Town also ignored the request about Town employees and consultants. We seek your help by requiring Town of Lincoln Select Board, and Conservation Commission to comply with the Open Records Law. We also want a response from the Town of Lincoln concerning the records of its employees and consultants records with regard to our initial request.” Based on the above, it is unclear whether the Town’s Select Board and Conservation Commission possess records responsive to Attorney Bell’s request. It is additionally uncertain whether the Town possesses records concerning its employees and consultants. The Town must clarify if there are additional records. 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).

Jared LaLiberte SPR20/1714 Page 3 September 30, 2020 Conclusion Accordingly, the Town is ordered to provide Attorney Bell 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dan Bell, Esq.