Justin Daglish v. Carlisle, Town of - Office of the Town Administrator (SPR 20220100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2022 SPR22/0100 Timothy Goddard Town Administrator Town of Carlisle 66 Westford Street Carlisle, MA 01741 Dear Mr. Goddard: I have received the petition of Justin and Elizabeth Daglish appealing the response of the Town of Carlisle (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 3, 2021, Mr. and Mrs. Daglish requested, “all [Board of Health] records pertaining to [an identified address] including an approval of upgraded septic system…” The Town provided a response on November 4, 2022. Unsatisfied with the Town’s response, Mr. and Mrs. Daglish petitioned this office and this appeal, SPR22/0100, 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). 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. The Town’s November 4th Response On November 4, 2021, the Town stated, “the septic system is designed for three bedrooms and is functioning. The BOH agreed to allow the occupancy of the apartment as long 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

Timothy Goddard SPR22/0100 Page 2 January 25, 2022 as the number of bedrooms in use do not exceed the current septic capacity. To guarantee this, the BOH required a three-bedroom deed restriction to be placed on the property deed. At no time can more than three bedrooms be in use on the property. The restriction would be released upon upgrading the septic system. The owner is in the process of getting the Restriction recorded.” Current Appeal On January 17, 2022, Mr. and Mrs. Daglish stated, “we have not received the information (about the septic system) requested and the [above-referenced] response from the Carlisle Board of Health is also attached.” Based on the Town’s response, it is unclear if it possesses additional records responsive to the above request. Specifically, the Town must clarify whether it possesses records regarding the named address generally and whether it possesses records regarding the septic system at the named address. 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 Mr. and Mrs. Daglish 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: Justin and Elizabeth Daglish