Eric Berzins v. Easthampton, City of (SPR 20232539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 7, 2023 SPR23/2539 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 September 26, 2023, Mr. Berzins requested “… the special permit and associated site plan for property 131-14.” The City provided a response on September 6, 2023. Unsatisfied with the City’s response, Mr. Berzins petitioned this office and this appeal, SPR23/2539, was opened as a result. While this appeal was pending, the City provided a supplemental response on October 30, 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); 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. 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 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 SPR23/2539 Page 2 November 7, 2023 custodian must provide the responsive records. The City’s September 6th and October 30th responses In its September 6, 2023 response, the City states, “[i]t is my understanding you submitted substantially the same request back on December 18, 2020. You received a response (after consultation) on February 8, 2021 containing the information we had on file (a building permit). A Special Permit was granted in 2008 for Palmer to expand to this portion of the property. That permit has already been provided. We have no other Special Permit. Attached is a file containing the current and former request: . . .” In its October 30, 2023 supplemental response, the City asserts: … I have attached the responses you received directly from the City with ShareFile links containing the documents you requested. I have also resent my responses directly to you which contain additional information or responses. It is my understanding that all documents relevant to assessors’ parcels 131-14; 131-3 and 131-4, which I believe is the [Palmer] Paving Property you are referring to, have been previously provided. If you are seeking a record which has not been provided the document does not exist. . . . Current appeal In his petition, Mr. Berzins indicates, “I asked for … a special permit and associated site plan for property 131-14. On September 6th, [Attorney] Tanner provided a Building Permit for property 131-14. This is not the document I asked for.” Further, in a November 1, 2023 email to the Public Records Division regarding the City’s October 30th response, Mr. Berzin asserts, “[g]iven that the documents that have been provided are not the ones I requested. I would like to appeal this response.” Based on the City’s September 6th and October 30th responses, indicating that the requested records were previously provided to Mr. Berzins on February 8, 2021, it is unclear the basis of his appeal. Mr. Berzins is advised, “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” See 950 C.M.R. 32.07(1)(a) (emphasis added). Conclusion Accordingly, I will consider this administrative appeal closed.

Barbara L. LaBombard SPR23/2539 Page 3 November 7, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Eric Berzins Mark A. Tanner, Esq.