David A. Wojcik v. East Brookfield Conservation Commission (SPR 20211030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2021 SPR21/1030 Susan Jacobs Town Clerk Town of East Brookfield 122 Connie Mack Drive East Brookfield, MA 01515 Dear Ms. Jacobs: I have received the petition of David Wojcik, Esq. of Christopher, Hays, Wojcik & Mavricos appealing the response of the Town of East Brookfield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 30, 2021, Attorney Wojcik requested the following records: “1) The complete file of the East Brookfield Conservation Commission with respect to the property owned by [named person] at [a named address] East Brookfield including everything relating to or referring to the Order of Condition (MassDEP 149-0131) issued for said property. 2) All pictures, videos, recordings, notes, memos, correspondence, text messages, social media posts, and all paper, computer or electronic records of any nature which in any way relate to or refer to the events of March 22, 2021 and involving [named individuals] or any of them and including any conduct or communications involving any of the [named individuals].” On April 14, 2021, the Town responded. Unsatisfied with the response, Attorney Wojcik petitioned this office and SPR21/1030 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 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

Susan Jacobs SPR21/1030 Page 2 May 6, 2021 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. Current Appeal In its April 14th response, the Town provided two emails addressing both parts of the records request. The Town provided the requested report and emails. In his appeal petition, Attorney Wojcik stated “[t]he response to Request # 2 is obviously incomplete. The Enforcement Order produced references photos and videos – none have been produced. The 3/23/21 email references: ‘including further photo documentation of work area and impacts’ – no such photo documentation has been produced. The enforcement order also references various measurements and quantities, here must have been field notes, measurements and calculations – none have been produced. The emails reference communications with DEP and a resident which were obviously electronic (written or oral) communications apparently to or from cell # 617 488 4352. Cell phone records of all such communications obviously exist but none have been produced.” On April 14th the Town provided an additional response from the East Brookfield Conservation Commission stating “[t]his is the final email with information available to the East brookfield Conservation Commission related to Item #2 in the 3/30/2021 request. To the best of my knowledge no additional information is currently available to the Commission regarding this request.” Based on the Town’s response, it is unclear if it possesses additional records responsive to the above 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). Conclusion Accordingly, the Town is ordered to provide Attorney Wojcik 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.

Susan Jacobs SPR21/1030 Page 3 May 6, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Wojcik, Esq.