John Q. Public v. Uxbridge, Town of - Town Clerk (SPR 20212244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2021 SPR21/2244 Kelly J. Cote, CMC Town Clerk Town of Uxbridge 21 S. Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of John Q. Public, aka UxRecords Reviewer, appealing the response of the Town of Uxbridge (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 5, 2021, the requestor sought to: “inspect, in-person, the [Town’s] original copies; and to make facsimiles in part and as may be warranted thereof; of financial transactions obtained by the [Town] or their agents from the following matters: 1. Richardson-North Corporation, et. al. vs. Mark Wickstrom, Member of the Uxbridge Zoning Board of Appeals, et al., (Docket No. 17 MISC 000271); 2. Immanuel Corp. vs. Uxbridge Zoning Board of Appeals, et al., Docket No. 1785CV00765; 3. Richardson-North Corporation, et al. vs. Uxbridge Board of Health, et al., Docket No. 1785CV00931; and, 4. Richardson-North Corporation, et al. vs. Uxbridge Planning Board, et al., Docket No. 1785CV00272; and, [S]aid copies of financial transactions having been obtained from the plaintiffs in Discovery by the [Town] during said legal matters.” Waiver of Fees In the request, the requestor asks the Town to waive all applicable fees due to disclosure that is in the public interest. The requestor is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor of Records (Supervisor) has no authority to order that a record custodian do so. 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

Kelly J. Cote, CMC SPR21/2244 Page 2 September 15, 2021 In the Town’s August 18, 2021 response, the Town asked the requestor for clarification on the request, stating, “[p]lease indicate whether my understanding of this request is accurate. If so, the Town is aware of the litigation you reference in your request and certain pleadings in its possession. However, the Town does not have, within its possession, the discovery documents that you seek.” Unsatisfied with the Town’s response, the requestor petitioned the Supervisor, and this appeal was opened. 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) (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 withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Public Records; Agency Relationship In its August 18th response and in a conversation with an attorney in the Public Records Division, you indicated that the Town does not have custody of all the requested records pertaining to the responsive litigation records. This office was also informed that the records are likely in the custody of the Town’s Legal Counsel, Mead, Talerman & Costa. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of

Kelly J. Cote, CMC SPR21/2244 Page 3 September 15, 2021 performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. See G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Based on the Town’s contractual relationship with its Legal Counsel, and based on the Town’s August 18th response, it is unclear whether the records are still in the possession of Mead, Talerman & Costa. The Town must clarify whether the requested records can be produced. Conclusion Accordingly, the Town is ordered to provide the requestor 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: John Q. Public, UxRecordsReviewer