Edward P. Sinni, Jr. v. Concord, Town of - Building Department (SPR 20232365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2023 SPR23/2365 Nathanial Smith Municipal Archivist and Records Manager Town of Concord 141 Keyes Road Concord, MA 01742 Dear Mr. Smith: I have received the petition of Edward P. Sinni, Jr. appealing the response of the Town of Concord (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 31, 2023, Mr. Sinni requested “…details of the code addressing that stainless steel braided hoses or similar are required under such a code.” Previous appeal This request was the subject of a previous appeal. See SPR23/2252 Determination of the Supervisor of Records (October 4, 2023). In the October 4th determination, I closed the appeal in light of the Town’s October 4, 2023 response. Unsatisfied with the response, Mr. Sinni petitioned this office and this appeal, SPR23/2365, 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 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 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

Nathaniel Smith SPR23/2365 Page 2 October 18, 2023 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 October 4th response In its October 4, 2023 response, the Town stated that “…the Town of Concord adheres to the Massachusetts Fuel Gas and Plumbing Code which is not a record of the Town.” Records in existence 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). Where Mr. Sinni has requested records concerning a Massachusetts state code, I find it is unclear whether the requested records are in the Town’s possession. The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Mr. Sinni with a response to the request, provided 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: Edward P. Sinni, Jr.