Richard Lane v. Sterling, Town of (SPR 20232098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2023 SPR23/2098 Kathleen K. Farrell Town Clerk Town of Sterling 1 Park Street, Butterick Municipal Building Sterling, MA 01564 Dear Ms. Farrell: I have received the petition of Richard G. Lane appealing the response of the Town of Sterling (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2023, Mr. Lane requested, among other items, the following: [1.] Any communication, written, electronic or otherwise, between BOH members, or between BOH members and town employees, as to the BOH letter that was included with the Sterling Municipal Light Department electric bills. [2.] Any communication, written, electronic, or otherwise, between BOH members, or between BOH members and town employees, as to the BOH advertisement placed in the July 12, 2023 edition of the Sterling Meetinghouse News. The Town responded on August 1, 2023, and again on August 21, 2023, providing numerous responsive records. Unsatisfied with the Town’s response, and contending that the Town possesses additional responsive records, Mr. Lane appealed, and this case 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

Kathleen K. Farrell SPR23/2098 Page 2 September 19, 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. Att’y 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. 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 August 1st and 21st Responses In its August 1, and August 21, 2023 responses, the Town provides copies of multiple emails along with a copy of a June 25, 2023 letter from the Board of Health. In his appeal petition, Mr. Lane states that “there was no open meeting conducted by the BOH between the June 8, 2023 meeting and the June 25, 2023 email conversation.” Further, he contends that “a reasonable person could conclude that, between June 8, 2023 and June 25, 2023, there must have been additional conversations, deliberations, or other communications between BOH members as well as BOH members and employees concerning [the June 25th] letter and advertisement.” Please be advised that 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). In a telephone conversation with this office on September 7, 2023, a representative for the Town confirmed that the Town does not possess any additional records responsive to Mr. Lane’s requests. Conclusion Where the Town confirmed that it does not possess additional records responsive to Mr. Lane’s request, I will now consider this administrative appeal closed.

Kathleen K. Farrell SPR23/2098 Page 3 September 19, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Richard G. Lane David Favreau, Health Agent