Dan Albert v. Marblehead, Town of (SPR 20222730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2022 SPR22/2730 Kyle A. Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Dan Albert appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 14, 2022, Mr. Albert requested “[a]ny and all minutes and records of the [Town’s] Complete Streets Committee meetings. These should include but are not limited to minutes taken by [T]own officials and meeting notes and/or documentation generated by Stantec Consulting Engineers.” Mr. Albert asked that the records be provided in electronic format if available, or in Adobe.pdf to maintain the document integrity. On October 27, 2022, the Town provided records responsive to the request. However, Mr. Albert asserts, “…[the Town] provided a single additional set of minutes. We have therefore not received minutes for five of the seven meetings and no explanation as to why these minutes have not been provided. Notably, the first set of minutes were taken by the consulting engineers, not anyone from the [T]own; the second were recorded by the [T]own and dated January 15, 2021 (no meeting was held on that date).” Mr. Albert further asserts, “I am still unsure where the January 15, 2021 meeting minutes are from as there is no indication of any public meeting held by the [T]own after 2019.” As a result of the Town’s October 27th response and non-production of meeting minutes responsive to the request, Mr. Albert petitioned this office 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 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

Kyle A. Wiley SPR22/2730 Page 2 December 12, 2022 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. Additional Public Records The basis of Mr. Albert’s appeal is that he did not receive all meeting minutes of the Town’s Complete Streets Committee, other than the meeting minutes Mr. Albert received dated December 11, 2018. In his November 28, 2022 petition to the Supervisor he claims, “…still no minutes for any of the meetings held in 2019…I am still unsure where the January 15, 2021 meeting minutes are from as there is no indication of any public meeting held by the [T]own after 2019.” Based on the above, it is unclear if the Town possesses additional records responsive to the request. 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). The Town must use its superior knowledge of the records to provide Mr. Albert with the responsive meeting minutes of the Town’s Complete Streets’ Committee. 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 whether responsive records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Albert 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.

Kyle A. Wiley SPR22/2730 Page 2 December 12, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Dan Albert