Eric Berzins v. Easthampton, City of (SPR 20232538)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2023 SPR23/2538 Barbara L. LaBombard City Clerk/Records Access Officer City of Easthampton 50 Payson Avenue Easthampton, MA 01027 Dear Ms. LaBombard: I have received the petition of Eric Berzins appealing the response of the City of Easthampton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 29, 2023, Mr. Berzins requested “… documentation that the following properties: 131-3; 131-4; 131-14, have satisfied the addressed issues found in the attached document.” 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. 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

Barbara L. LaBombard SPR23/2538 Page 2 November 7, 2023 The City’s responses On August 17, 2023, the City’s Legal Counsel, Mark A. Tanner, Esq., of Bacon Wilson, P.C., provided Mr. Berzins with a list of several requests made in July to verify if the listed requests are correct. On September 5, 2023, Attorney Tanner provided another response, stating, “Mr. Berzins, Please find a link to the documents which are responsive to your outstanding public records requests. . . .” As a result of the September 5th production of documents, Mr. Berzins petitioned the Supervisor of Records, and SPR23/2538 was opened. In his petition, Mr. Berzins asserts, “[o]n August 17th Mark Tanner the [C]ity attorney [c]onfirms I want a public records request for a special permit and site plan for property 131-3. On September 5th the [C]ity provided documents for my request…But they are not the correct documents. The documents they provided are in actuality for property 131-14.” In his October 24th email to our office, Mr. Berzins asserts, “[t]he [City] provided the following document: Permit – Palmer Paving (2). You will find that this is in actuality the ½ of the special permit for property 131-14, and not the special permit for 131-3.” On June 29, 2023, Mr. Berzins requested “… documentation that the following properties: 131-3; 131-4; 131-14, have satisfied the addressed issues found in the attached document.” Where Mr. Berzins did not make a request for a special permit for property 131-3 in this June 29th request, it is unclear the basis of his appeal. Mr. Berzins is advised, under 950 C.M.R. 32.08(1), (e) all petitions for appeal shall be in writing and shall specifically describe the nature of the requester’s objections to the response or failure to timely response. (f) Requesters shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: 1. a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses; and, 2. a complete copy of all written responses associated with requests subject to the petition for appeal, including in the case of electronic communications all header information, indicating time, date, subject, sender and recipient email addresses. 950 C.M.R. 32.08(1)(e), (f). Therefore, where Mr. Berzins did not provide the Supervisor with a copy of his request for the Special Permit and Site Plan for property 131-3, I decline to opine on this matter. Once Mr. Berzins gathers all the records necessary for making an appeal to the Supervisor, including the request for the Special Permit and Site Plan for property 131-3, he may request a new appeal.

Barbara L. LaBombard SPR23/2538 Page 3 November 7, 2023 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Eric Berzins Mark A. Tanner, Esq.