Robert Cox v. East Brookfield, Town of - Office of the Town Clerk (SPR 20221209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 6, 2022 SPR22/1209 Susan V. Jacobs Town Clerk Town of East Brookfield Memorial Town Complex 122 Connie Mack Drive East Brookfield, MA 01515 Dear Ms. Jacobs: I have received the petition of Robert D. Cox, Jr., Esq., of Bowditch & Dewey, LLP, 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 11, 2022, Attorney Cox requested records of the Conservation Commission, Board of Selectmen or Town Counsel, as follows: 1. All enforcement orders with respect to the property owned by [an identified person] at 116 Bennett Street, [in the Town]; 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 [four identified persons] or any of them and including any conduct or communications involving any of the [identified persons]; 3. All public records setting forth or referencing “Guidelines for removing materials from Lake Lashaway during drawdown,” including all amendments or changes to said guidelines or policies; 4. All meeting agendas and minutes of the Conservation Commission from January 1, 2000 through the present; 5. All public records relating in any manner to the appointment and swearing in of: [three identified persons] as members of the Conservation Commission; 6. All public records relating to or concerning the property at [an identified address] and/or wetlands act violations or alleged wetlands violations at said property or relating to said property and/or construction or excavation work at said property including but not limited to gravel placed in the wetlands buffer zone and construction activities and occupancy without a current and valid order of conditions; and, 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 SPR22/1209 Page 2 June 6, 2022 7. All enforcement orders, including emergency orders, issued by the Conservation Commission from January 1, 2000 through the day of your response. In a March 15th email to Attorney Cox’s law firm, the Town Clerk asserted, “I am not able to provide these records because I am not in possession of them. Your request will be forwarded to the appropriate parties.” Prior appeal This request was the subject of a prior appeal. See SPR22/1055 Determination of the Supervisor of Records (Supervisor) (May 20, 2022). I closed SPR22/1055 when the Town provided Attorney Cox with a response to his request. On May 23, 2022, Attorney Cox reported to this office that he did not receive the requested records. Consequently, the current appeal was opened. Upon receipt of the current appeal file, the Town Clerk further confirmed the records were not in possession of the Town Clerk’s Office. Diligent search 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). 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). While the Town responded that the records are not in the possession of the Town Clerk’s Office, the Town must use its superior knowledge of the records, and forward the request to the appropriate Department(s) and/or records access officers within the Town that may have possession, custody, or control of the records. Attorney Cox informed this office that he has not received a response nor any records that may be in the possession of the Town’s Conservation Commission, the Board of Selectmen and/or the Town’s Legal Counsel. See G. L. c. 66, § 6A(a). (Each agency or municipality shall designate 1 or more employees as records access officers. In a municipality, the municipal clerk, or the clerk’s designees, or any designee of a municipality that the chief executive officer may appoint, shall serve as records access officers). I find that it is unclear whether the Town forwarded the request to the Conservation Commission and/or any other Town departments that may be in possession of the records, and whether a diligent search for the records was conducted. The Town must clarify this issue.

Susan Jacobs SPR22/1209 Page 3 June 6, 2022 Order Accordingly, the Town is ordered to provide Attorney Cox 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: Robert D. Cox, Jr., Esq., Bowditch & Dewey, LLP