Jenn Gordon v. Billerica, Town of - Town Clerk (SPR 20232614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2023 SPR23/2614 Donna McCoy Town Clerk Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Jenn Gordon appealing the response of the Town of Billerica (Town) to her request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 14, 2023, Ms. Gordon requested various records related to the closure of Parker Street. On October 16, 2023, the Town responded and provided responsive records. On October 23, 2023, Ms. Gordon clarified her request to the following: [1] …[T]he Board of Selectman meeting minutes from any and all discussions regarding the original temporary closure of Parker, circa early 2000s. [2] …[C]opies of the petition in 2021 to keep the road closed and who started the petition[.] The Town provided responsive records for Item 1 on October 23, 2023, and provided further responsive records on October 26, 2023. Unsatisfied with the Town’s responses regarding Item 1 of the request, Ms. Gordon petitioned this office and this appeal, SPR23/2614, 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 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

Donna McCoy SPR23/2614 Page 2 November 14, 2023 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 October 23rd and October 26th responses In the Town’s October 23, 2023 response, it provided the requested meeting minutes. In the Town’s October 26, 2023 response, it provided additional responsive records. Current Appeal In her current appeal, Ms. Gordon claimed that the Town’s latest responses provided on October 23rd and October 26th were unsatisfactory, because the Town did not provide all the responsive records. Based on the Town’s response, in conjunction with Ms. Gordon’s appeal, it is unclear if the Town possesses additional records responsive to the above request. Specifically, the Town must clarify whether it possesses any additional meeting minutes which discuss the closure of Parker Street. 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). Conclusion Accordingly, the Town is ordered to provide Ms. Gordon 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: Jenn Gordon