Lee Jundanian v. Uxbridge, Town of - Town Clerk (SPR 20231482)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2023 SPR23/1482 Kelly J. Cote, CMC Town Clerk Town of Uxbridge 21 South Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of Lee J. Jundanian appealing the response of the Town of Uxbridge (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 25, 2023, Mr. Jundanian requested the following records: [1] A copy of any and all correspondence between the [Town] and Tata & Howard (including all meeting minutes and notes related thereto; all such correspondence, meeting minutes and notes hereinafter referred to as “Correspondence” as to all requests noted herein) regarding the design, installation and approval of any of the cistern systems installed on Tabor Road. Such Correspondence should include, but not be limited to, issues related to the impact of water pressure in connection with the installation of cistern systems that refill in off-peak hours; [2] A copy of any and all Correspondence between the Town of Uxbridge and Geoinsight, Inc. (including Correspondence between Geoinsight and [identified individual] and/or Tata & Howard, to which the Town was copied) regarding the design, installation and approval of any of the cistern systems installed on Tabor Road. Such Correspondence should include, but not be limited to, issues related to the impact of water pressure in connection with the installation of cistern systems that refill in off-peak hours; [3] A copy of any and all Correspondence between the Town of Uxbridge and Bruce Taylor, members of his extended team working on approval of cistern systems regarding the design, installation and approval of any of the cistern systems installed on Tabor Road. Such Correspondence should include, but not be limited to, issues related to the impact of water pressure in connection 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

Kelly J. Cote, CMC SPR23/1482 Page 2 July 11, 2023 with the installation of cistern systems that refill in off-peak hours; [4] A copy of any and all Correspondence between the Town of Uxbridge and Robert Knapik, Esq., in his capacity as counsel to [an identified individual] and his organization, regarding the design, installation and approval of any of the cistern systems installed on Tabor Road. Such Correspondence should include, but not be limited to, issues related to the impact of water pressure in connection with the installation of cistern systems that refill in off-peak hours; [5] A copy of any and all Correspondence between the Town of Uxbridge regarding a sunset provision to the moratorium placed on additional water connections in the water district that services East Street and Kempton Road; and [6] A copy of any and all Correspondence (both internal and external) regarding the upgrade of the Town’s current water system in the water district that services East Street and Kempton Road that would increase availability of Town Water to more houses which Correspondence should include, but not be limited to, the time frame for implementation of such a system upgrade. The Town provided Mr. Jundanian with the records responsive to his request; however, on June 27, 2023, Mr. Jundanian petitioned the Supervisor of Records (Supervisor) seeking an appeal due to the Town not providing any records responsive to his Request Number 6. As a result, 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 burden of establishing the applicability of an exemption).

Kelly J. Cote, CMC SPR23/1482 Page 3 July 11, 2023 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. Based on Mr. Jundanian’s appeal, I find the Town must clarify whether it possesses records responsive to Item 6 of 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). Conclusion Accordingly, the Town is ordered to provide Mr. Jundanian 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: Lee J. Jundanian