Amanda Alix v. Shutesbury, Town of (SPR 20222684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2022 SPR22/2684 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road P. O. Box 264 Shutesbury, MA 01072 Dear Mrs. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2022, Ms. Alix requested the following records: 1. Affidavit referenced by [named person] during the 9/22/22 Conservation Commission meeting; 2. Daily logs of Shutesbury Highway Dept. work for the months of July 2021 and August 2021; 3. Invoice for the rental of a mini-excavator used to demolish the garage on [named location] in August 2021; 4. Invoices for tipping and any other fees related to demolition waste and debris disposed of following the garage demolition and cleanup; 5. Invoices for fees incurred for the disposal of hazardous waste (concrete from garage floor and soil/gravel below the floor); 6. Invoices for the type and amount of fill used to bring the former garage site up to grade; 7. All written communication between town officials and DEP prior to and following a site visit to [named location on named date] regarding the assessment and cleanup of the landfill areas on the site; 8. All written communication between town officials and DEP prior to and following a June 2021 consultation regarding the garage demolition, debris removal, and soil testing associated with the demolition work. 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

Grace Bannasch SPR22/2684 Page 2 December 2, 2022 Prior Appeals The requested records were the subject of prior appeals. See SPR22/2401 Determination of the Supervisor of Records (October 31, 2022) and SPR22/2479 Determination of the Supervisor of Records (November 16, 2022). In my November 16th determination, I closed the appeal after the Town provided a further response to Ms. Alix on November 16, 2022. Unsatisfied with the Town’s response, Ms. Alix petitioned this office and this appeal, SPR22/2684, 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. Current appeal In her current appeal, Ms. Alix is claiming that the Town has not produced all responsive records to parts 2 and 5 of her request. The Town’s November 2nd and November 16th responses In its November 16, 2022 response, the Town claims Exemption (e) of the Public Records Law for withholding the responsive records for part 2 of the request. See G. L. c. 4, § 7(26)(e). In a November 2, 2022 response, the Town claims that they have produced all responsive records for part 5 of the request. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit

Grace Bannasch SPR22/2684 Page 3 December 2, 2022 G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its November 16th response, the Town explained the daily logs stating the following: When the record request was first submitted, I asked the Highway Supervisor for his daily log. He did not know what I was referring to. I then asked what he used to keep track of the things that happen during the day, and he explained he uses his personal notebook. I asked if there were any other records that might fit the description, the answer was no. I also asked if anyone else uses his notebook, again the answer was no. At this point, it was my understanding that what was referred to as a “daily log” was in fact a personal notebook. When Mrs[.] Alix shared the Selectboard minutes from 2015, they revealed where the term “daily log” came from and also confirmed that the Highway Supervisor has never shared these notes with the Selectboard, or anyone else. Although the Town has confirmed that the daily log in question was a personal notebook and was not shared with others. It is unclear if the personal notebook has been used or continues to be used as part of a government file. The Town must clarify this matter. In a previous response on November 2, 2022, the Town addressed part 5 of the request stating “Mrs. Alix specifically requested an invoice related to the disposal of hazardous waste. As there was no hazardous waste removed from the property during the project in question, there was no hazardous waste invoice.” In her current appeal, Ms. Alix claims that there is an additional invoice for removal in a named lot that the Town has not produced.

Grace Bannasch SPR22/2684 Page 4 December 2, 2022 In light of Ms. Alix’s claim, it is unclear if the Town possesses additional records responsive to the above request. Specifically, the Town must clarify whether it possesses records regarding an additional invoice for a named lot. 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 Ms. Alix 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. Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix