Claire Barden v. Lynnfield Center Water District (SPR 20220076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2022 SPR22/0076 John V. Scenna Superintendent Lynnfield Center Water District 83 Phillips Road Lynnfield, MA 01940 Dear Superintendet Scenna: I have received the petition of Claire Barden appealing the response of the Lynnfield Center Water District (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 27, 2021, Ms. Barden requested numerous categories of records concerning the monitoring, testing, treatment, and mitigation of “PFAS6” in the District’s water supply. The District responded on January 10, 2022, directing Ms. Barden to the District’s website. Unsatisfied with the District’s response, Ms. Barden appealed, and this case 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 agency or municipality 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. Att’y 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 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

John V. Scenna SPR22/0076 Page 2 January 25, 2022 custodian must provide the responsive records. Current Appeal In her appeal petition, Ms. Barden contends that “the custodian of records has failed to provide any responsive records within 10 business days of [her] request.” Among other things, she notes that she “requested all sample collection dates, locations, and results from the period dated 01/20-12/21.” Additionally, in emails to this office subsequent to the opening of this appeal, Ms. Barden clarifies that her “records request was for all sample collection dates, locations, and results” and not just “aggregate results.” She also reiterates that she has not received numerous records that she requested The District’s January 10th Response In its January 10, 2022 response, the District directs Ms. Barden to its website “where presentation videos, PowerPoint slides, test results and interactive FAQ documents can be found containing information relating to several of [her requested] items.” 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, please be advised that it is permissible for the custodian of records to provide access to records via a link to a website. See 950 C.M.R. 32.04 (5)(e) (“A records access officer shall . . . to the extent feasible, furnish the public records by providing reasonable assistance in locating the records on an appropriately indexed and searchable public website”). In this case, based on the District’s response to Ms. Barden, it is not clear whether the District has provided access to all responsive records in its possession, custody, or control. Specifically, it is unclear whether all records responsive to Ms. Barden’s request are available from the website, whether some will need to be provided to her separately, or whether others exist at all. The District must clarify these matters. Conclusion Accordingly, the District is ordered to provide Ms. Barden with a response to her 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 the response to this office at pre@sec.state.ma.us.

John V. Scenna SPR22/0076 Page 3 January 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Claire Barden