Preserve Hopedale v. Hopedale, Town of (SPR 20222556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2022 SPR22/2556 Lisa Pedroli Town of Hopedale 78 Hopedale Street Hopedale, MA 01747 Dear Ms. Pedroli: I have received the petition of Preserve Hopedale appealing the response of the Town of Hopedale (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2022, the requestor sought the following records: [1] All non-published documents or correspondence submitted to, or received by, the [Planning Board] from any person or entity pertaining to the Project in any way, regarding the application or otherwise, aside from those originating from this group, Preserve Hopedale; [2] Meeting minutes from the (closed-to-the-public) [w]orkshop that occurred regarding this Project in any way, regarding the application or otherwise; [3] All non-published investigation, inquiry or research done by or for the [Planning Board] by staff, Town officials or employees, or any other person or entity pertaining to the Project in any way, regarding the application or otherwise; [4] All non-published (including prior versions of) traffic, noise, light, sewage, storm water/drainage, water supply, or other studies or information received or reviewed by the [Planning Board], pertaining to the Project in any way, regarding the application or otherwise; [5] Meeting minutes from the Select Board Executive session on 9/26/2022 regarding Rosenfeld Concrete Corp. vs. Town of Hopedale (now that the case has been vacated by the court and there is no pending litigation); and, [6] Any remaining non-published notices of public meeting/hearings, agendas, and meeting minutes of the [Board of Selectmen] pertaining to the Project in any way, regarding the application or otherwise. On October 27, 2022, the Town provided a response, including responsive records. Claiming to not have received all the responsive records, the requestor petitioned this office and this appeal, SPR22/2556, was opened as a result. 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

Lisa Pedroli SPR22/2556 Page 2 November 21, 2022 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) (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. The Town’s October 27th response In its October 27, 2022 response, the Town stated, “[p]lease find attached documents . . . requested along with Minutes that have yet to be approved and are in the draft form. Other minutes that pertain to this request are on the ZBA website and the dates are September 3, [2021], October 20, 2021, January 19, February 16, March 16, May 18, June 15, and July 27, 2022.” Current appeal In the appeal petition, the requestor states, “… some documents were provided by the [Town] on 10/27/22 but the vast majority of the request has gone unanswered. As of [November 10th], we have not received any additional correspondence.” 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 with records on October 27, 2022, it is unclear whether the Town has additional records responsive to the request. Consequently, the Town must clarify whether additional records exist.

Lisa Pedroli SPR22/2556 Page 3 November 21, 2022 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 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Preserve Hopedale