Raymond Y. Cormier v. Merrimac, Town of - Town Clerk (SPR 20222694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2694 Gwendolyn L. Sabbagh Town Clerk Town of Merrimac 2 School Street Merrimac, MA 01860 Dear Ms. Sabbagh: I have received the petition of Raymond Y. Cormier appealing the response of the Town of Merrimac (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 4, 2022, Mr. Cormier requested the following 19 enumerated categories of records pertaining to the Town’s water supply system: [1] AutoCAD/GIS file showing the existing conditions/as-built of the water supply system, including all work completed between 2010-2022 (e.g. repairs to water tanks, replacement of water mains, new stand pipes, booster pumps, etc.); [2] A plan/schematic file showing the existing conditions/as-built of the water supply system, including all work completed between 2010-2022 (e.g. repairs to water tanks, replacement of water mains, new stand pipes, booster pumps, etc.); [3] Storage Tanks -24-hour level charts, for peak day and average day in 2021 for all tanks (Bear Hill and West Main Street); [4] The number of pumps and ratings in the West Main Street Pumping Station; [5] The Town’s Water Master Plan (2009) which was submitted to Mass DEP under the Administrative Consent Order ACOP-NE-10-5D005 signed by . . ., Chairman Town’s Board of Selectmen dated 6/2/10; [6] All correspondence and reports sent to and from the Town, Comprehensive Engineering Consultants, Haley and Ward, DeFelice Corporation and its employees, R.E. Prescott Co. Inc., and other consultants, and DEP related to the Administrative Consent ACOP-NE-10-5D005 signed by . . ., Chairman of the Town’s Board of Selectmen dated 6/2/10 including: a. 14 flow test results performed on June 4, 1998 as identified in ACOP- NE-10-5D005, section 6.1; b. 19 flow tests results performed on April 23, 2009 as identified in ACOP-NE-10-5D005 section 6H; c. The approved and enforceable Minimum Pressure Plan and date of the 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

Gwendolyn L. Sabbagh SPR22/2694 Page 2 December 6, 2022 plan as identified in ACOP-NE-10-5D005, section 9a; d. The location of any and all pressure zones, and their boundary identified in “Minimum Pressure Plan” as required in ACOP-NE-10- 5D005, section 9a on or before 7/15/2010, or the date of the original Minimum Pressure Plan; e. Provide the location, plans and all correspondence, reports, and tests between the Town, Comprehensive Engineering Consultants, Haley and Ward, any other consultants, and DEP for any modification of any pressure zone boundary identified in “The Minimum Pressure Plan” as require [sic] in ACOP-NE_10-5D005, section 9a after 7/15/10 or the date of the original Minimum Pressure Plan; f. All correspondence between Bedford Design Group, the Town’s DPW and its Director, the Town’s Water Department and its’ Director, the Town’s Water Commission and its’ representative, the Town’s Planning Board, the Town’s Site Plan Review Board, Comprehensive Engineering Consultants and its employees and consultants, Haley and Ward and its employees and consultants, RE Prescott Co. Inc. and its employees and consultants, Horsley and Witten and its employees and consultants, DeFelice Corporation and its employees and subcontractors, and Mass DEP related to the design and construction of the water main on West Main Street, Jana Way, and Regency Village Road and related work, including but not limited to executed change order documents, including all attachments, modifications to the West Main Street Water Booster Station from the original Minimum Pressure Plan as part of AOCP-NE-10-5D005 and water main between 2013 and 2022; g. Record Drawings of the West Main Street Pumping Station, including suction and discharge connections to the high and low pressure mains located in West Main Street; h. Any and all correspondence and reports sent to and from the Town, Comprehensive Engineering Consultants and its employees and consultants, Haley and Ward and its employees and consultants, RE Prescott Co., Inc. and its employees and consultants, DeFelice Corporation and its employees and its consultants, any other consultants, and Mass DEP related to the design, plans, specifications, alterations, deviations from design plans, modifications, Record Drawings Plans, and required tests and sign offs individually and separately for the Attitash Booster Station, the Union Street Booster Station, and the West Main Street Booster Station, as required by the Administrative Consent Order ACOP-NE-l 0-5D005; i. Any and all reports submitted to Mass DEP by the Town, Comprehensive Engineering Consultants, Haley and Ward, DeFelice Corporation, or any of their consultants in connection to the original Minimum Pressure Plan, or modified Minimum Pressure Plan, as

Gwendolyn L. Sabbagh SPR22/2694 Page 3 December 6, 2022 required in A0CP-NEI0-5D005; j. Any and all funding sources, dates, and amounts for the West Main Street pumping station; k. Any and all flow test results and reports from 2010-pesent conducted by any entity that was required by Mass DEP, or not, to ensure that the Town is not in violation of the Administrative Consent Order with penalty and notice of non-compliance with ACOP-NE-10-5D005 to PWS ID10# signed by Rick Pinciaro, Chairman of the Town’s Board of Selectmen dated 6/2/10; l. Written notice between and all correspondence and reports sent to and from the Town, Comprehensive Engineering Consultants and its employees and consultants, Haley and Ward and its employees and consultants, and Mass DEP to comply Section 9d of the Administrative Consent Order with penalty and notice of non- compliance with ACOP-NE-10-5DOOS to PWS ID# 3180000 signed by Rick Pinciaro, Chairman of The Merrimac Board of Selectmen dated 6/2/10; and, m. All correspondence including but not limited to emails and text messages between the Town’s DPW Director, the Town’s Water Department Director, the Town’s Water Commission representative, the Town’s Director of Inspectional Services, Haley and Ward, Comprehensive Engineering Consultants, and Horsley and Witten between 1-1-2020 and 10-4-2022. On October 18, 2022, the Town provided Mr. Cormier with records in-person and asked Mr. Cormier to sign for the records when he picked them up at Town Hall. After reviewing the records that he received, on November 4th, Mr. Cormier 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 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

Gwendolyn L. Sabbagh SPR22/2694 Page 4 December 6, 2022 burden of establishing the applicability of an exemption). Current appeal In his November 4th petition, Mr. Cormier stated, “[the request] had 19 detailed requests, which I believe 4 were sufficiently answered, while 15 were either ignored or provided selected or incomplete records by the [Town] and its’ consultants.” Mr. Cormier asserts that on October 18th he was not provided with all the requested records. The following are requested records that Mr. Cormier did not receive, nor receive a response as to why they were not provided: Request Number 1; Request Number 2; Request Number 6(c); Request Number 6(d); Request Number 6(e); Request Number 6(f); Request Number 6(g); Request Number 6(h); Request Number 6(i); Request Number 6(j); Request Number 6(k); Request Number 6(l); and, Request Number 6(m). Based on Mr. Cormier’s petition to the Supervisor that most of the requested records were not provided, it remains unclear if the Town possess additional records responsive to Mr. Cormier’s requests referenced above. 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). The Town must clarify these issues regarding Mr. Cormier’s October 4th request. I encourage the parties to work together to resolve the issue of the requested records that were not provided to Mr. Cormier. Conclusion Accordingly, the Town is ordered to provide Mr. Cormier with a response to his 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: Raymond Y. Cormier