Amanda Alix v. Shutesbury, Town of (SPR 20232019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2019 Grace Bannasch Town Clerk Town of Shutesbury 1 Cooleyville Road Shutesbury, MA 01072 Dear Ms. 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 August 7, 2023, Ms. Alix requested the following records: [1.] All bids received by the Town for the Locks Pond Road Culvert Replacement Project; [2.] Copy of the contract between the Town and MAS Building and Bridge for the Culvert Project[;] [3.] Minutes and the Zoom link for the “Locks Pond Culvert Municipal Small Bridge Project – Locks Pond Culver Update” Public Information Meeting of Aug 6, 2020, at 6:00 PM; [4.] Copy of the contract with Nitsch Engineering for the Locks Pond Culvert Project[.] The Town responded on August 15 and August 28, 2023. Unsatisfied with the responses, Ms. Alix petitioned this office and this appeal, SPR23/2019, 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 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 SPR23/2019 Page 2 September 11, 2023 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. Attorney 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. The Town’s Responses In the Town’s August 15, 2023 response, the Town stated, “[i]n regards to item 3: There were no minutes taken of that presentation in 2020. However I was able to find the video… In regards to Items 1, 2 and 4: There will be a fee for time expended as consistent with the Public Records Law…” On August 15, Ms. Alix amended her request and stated, “please send me the winning bids for the engineering contract for the culvert project (Nitch Engineering) as well as the MAS bid for the same… As for the MAS contract itself, I assume town officials had a digital copy they could refer to on their computers during the August 8 Select Board meeting, so it should be available to send to me, as well. It would be great if you either send me the winning bids and/or post them on the town website within the timelines of my original request.” In the Town August 28, 2023 response, the Town stated, “I have communicated the revised request to the relevant custodian (the Town Administrator) and am awaiting confirmation as to what is and is not currently available in a digital format.” Subsequent to the opening of this appeal, the Town sent further correspondence on August 28th and stated, “the Nitsche bid does currently exist in a digital format, but the MAS bid is not wholly digitized… I am revising the previous fee estimate in light of your revised request, and I estimate it will now take 2 hours instead of 4 hours to complete.” Additionally, the Town sent records on August 29, 2023. In an email dated August 29, 2023, Ms. Alix stated, “I still want this item from my original request of August 7… Copy of the contract between the Town and MAS Building and Bridge for the Culvert Project.” In light of Ms. Alix’s August 29th email, it is unclear if the Town possesses additional records that may be 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). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records

Grace Bannasch SPR23/2019 Page 3 September 11, 2023 Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Ms. Alix with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix