Lori Poirier v. Blackstone, Town of (SPR 20232091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2023 SPR23/2091 Katie Moxam Assistant to the Town Administrator Town of Blackstone 15 St. Paul Street Blackstone, MA 01504 Dear Ms. Moxam: I have received the petition of Lori Poirier appealing the response of the Town of Blackstone (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 21, 2023, Ms. Poirier requested: 1. All pool inspections for businesses, non-profits, organizations or [commercially-run] type businesses for the last 6 years. I would like to know WHO did the inspections, the dates of the inspections and, if applicable, the qualifications of the inspector. Not sure if it’s a [T]own employee doing it or do [you] hire a company, [etc.; but,] if it’s a [T]own person, I definitely want to know the qualifications of the inspector[;] 2. Any all correspondence between any employee, board member, etc. with the Board of Health regarding the hiring/appointment of the health agent. Communications/ correspondence] would be emails, text messages, letters and faxes[;] 3. In light of watching last [night’s Board of Health] meeting, I would also like to have the records for the last 6 years of who is [spot-checking] these establishments that are selling cigarettes to minors. I am assuming we have a policy and procedure and records, so I would like to get that info. [,] as well. On June 26, 2023, the Town Administrator’s Office responded to the request, and provided records from the Town’s Board of Health (Board). Unsatisfied with the Town’s response, Ms. Poirier petitioned this office and this appeal was opened. 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

Katie Moxam SPR23/2091 Page 2 September 18, 2023 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). 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. The Town’s July 26th response In its July 26, 2023 response, the Town responded as follows: Item 1 Regarding Item 1 of the request, the Town stated, [d]ue to a great deal of turnover and reorganization in the Building Dept. (where [the Board] records are kept) along with not having an in-house Health Agent over the past 8 months and the administration limiting accessibility to files to our Health Agent, we have been unsuccessful in locating the [Board’s] pool inspection file. Pool inspections are required under the State Sanitary Code 105 CMR 435.000. Inspections are required to be conducted by the legally designated health authority of the Town, which is the BOH or an authorized agent or representative of the [Board]. The Blackstone Valley Partnership for Public Health a duly authorized agent of the [Board] performed the pool inspections. In its July 26th response, the Town informed Ms. Poirier that it has been unsuccessful in locating records of swimming poll inspection records of the Board. However, the Town also indicated that, “[i]nspections are required to be conducted by the legally designated health authority of the Town, which is the [Board] or an authorized agent or representative of the [Board]. The Blackstone Valley Partnership for Public Health a duly authorized agent of the

Katie Moxam SPR23/2091 Page 3 September 18, 2023 [Board] performed the pool inspections. Based on the Town’s response, it is unclear whether the Town made a diligent search for the pool inspection records, including any archived records. Additionally, it is uncertain whether the Town requested any pool inspections records that may be in the custody of its agent, the Blackstone Valley Partnership for Public Health. The Town must clarify this matter. Item 2 Regarding Item 2 of the request, the Town indicated, [a]ttached you will find correspondence from the Town Accountant regarding the “hiring/appointment of the health agent.” The only discussion that exists with regards to “the hiring/appointment of the health agent,” is the video of the posted June 20, 2023, [Board] Meeting and can be found on the [Town’s] website under “streamline Meetings.” In her petition, Ms. Poirier asserts, “I requested any and all communications between any and all [B]oard Members…[t]his was a new position created that had to be voted on at the [T]own [M]eeting which means there had to be communication with the Finance Committee and Board of Selectman, [Board] and the Town Administrators office to determine job description, posting of the position pursuant to hiring practices, etc.” In light of Ms. Poirier’s claim above, it is unclear whether the Town made a diligent search for any and all communications regarding the hiring/appointment of a new health agent. 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 clarify this matter. Item 3 For Item 3, the Town opined, [t]he [Board] has adopted comprehensive tobacco regulations along with a violation schedule. The [Board] is also a partner of the [Board of Health] Tobacco Control Alliance, who conducts random compliance checks throughout the year with the cooperation of the [Board]. The [Board] does not have access to those files at this time. Ms. Poirier made a request for records for the last six years of who is spot checking these establishments that are selling cigarettes to minors, and any policy and procedure and records. The Town asserted in its July 26th response, “[t]he [Board] has adopted comprehensive tobacco regulations along with a violation schedule. The [Board] is also a partner of the [Board of Health] Tobacco Control Alliance, who conducts random compliance checks throughout the year

Katie Moxam SPR23/2091 Page 4 September 18, 2023 with the cooperation of the [Board]. The [Board] does not have access to those files at this time.” Based on the Town’s response, it is unclear why the Town does not have access to those files; therefore, the Town must clarify this matter. 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). Consequently, I find the Town did not meet its burden in responding to this records request. Conclusion Accordingly, the Town is ordered to provide Ms. Poirier with a response to her 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: Lori Poirier