Christopher P. Loreti v. Arlington, Town of - Clerk's Office (SPR 20221510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2022 SPR22/1510 James Feeney Deputy Town Manager Town of Arlington 730 Massachusetts Avenue Arlington, MA 02476 Dear Mr. Feeney: I have received the petition of Christopher P. Loreti appealing the response of the Town of Arlington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 30, 2022, Mr. Loreti requested the following records: Documentation regarding the encroachment of D. Muzzioli Associates on the Minuteman Bikeway property, 24 Ryder Street, including: • Results of litigation described in the Selectmen Minutes 01-08-2001; • Results of further encroachment on the bikeway as reported in the 4-21-21 minutes of the Bicycle Advisory Committee including the field investigation of the Environmental Planner; • Written description of any actions taken by the [T]own eliminate the encroachments; • Any documentation provided by the MBTA that allows the Select Board to grant use of the Minuteman Bikeway/Railroad right-of-way to private businesses; Address of Request (if provided): 24 Ryder St.; Documentation regarding the encroachment of D. Muzzioli Associates on the Minuteman Bikeway property, including: • Results of litigation described in the Selectmen Minutes 01-08-2001; • Written description of any actions taken by the town to eliminate the encroachments; • Any documentation provided by the MBTA that allows the Select Board to grant use of the Minuteman Bikeway/Railroad right-of-way to private businesses. On June 13, 2022, the Town provided Mr. Loreti with a response that included a relevant email held by the Environmental Planner/Conservation Agent, David Morgan, and a further search of his predecessor’s email inbox. The Town also explained there were no formal documents or memoranda on the shared drive. In addition, the Legal Department indicated it had 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

James Feeney SPR22/1510 Page 2 July 12, 2022 begun searching for responsive records, but needed more time to continue conducting the search. It was the Town’s goal to provide Mr. Loreti with the records by June 21st. On June 27th, Mr. Loreti asked for a status report on when he could expect the records. Not receiving any further response or records, on June 30th, Mr. Loreti petitioned the Supervisor of Records (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). Timeline for providing public records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the municipality such that the municipality cannot provide records within 10 business days, the municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the municipality shall produce the public records sought; provided, that for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Town must provide Mr. Loreti with an estimated date as to when it expects to provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis.

James Feeney SPR22/1510 Page 3 July 12, 2022 Conclusion Accordingly, the Town is ordered to provide Mr. Loreti with a response to his 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: Christopher P. Loreti