Geoff Beach v. Acton, Town of - Town Clerk (SPR 20233135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2024 SPR23/3135 Leo Mercado Deputy Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoffrey Stephen Beach appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 29, 2023, Mr. Beach requested the following records: [1] The endorsed amended Subdivision Plan dated October 30, 2020 referenced in Definitive Subdivision Decision 20-02, Amendment #1 (attached); [2] All records pertaining to Condition 3.1.1 of that Amendment (attached); [3] All records pertaining to Condition 3.1.3 of that Amendment (attached); and [4] All of the documents listed in Subdivision Rules and Regulations Section 5.2 (attached) related to the submission of the Amendment request. On November 29, 2023, the Town provided an acknowledgment of Mr. Beach’s request, indicating, “[t]he Town Clerk’s office is in receipt of your request and will provide you a reply as soon as possible, but in any event within ten (10) business days required by statute. This request will be forwarded to the appropriate Departments … You will be contacted if there are any questions or we need further information. Once the information has been gathered, it will be forwarded to you…” The Town sent a December 12, 2023 response, stating, “[t]he Town’s production of records pursuant to your [r]equests includes all documents in the Town’s possession that are responsive to your [r]equests…” The Town provided a link to the Town’s public document system at: https://doc.actonma.gov/dsweb/View/Collection-12953. Additionally, in its December 12th response, the Town indicates, “[o]ur records show the endorsed amended mylar plan was picked up by Gallagher of Seal Harbor on 11/22/2021 from our office to record at the Registry [of Deeds]. Mr. Gallagher still needs to record documents at 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

Leo Mercado SPR23/3135 Page 2 January 9, 2024 the Registry of Deeds, once they are recorded, they will be available to the public at the State website at: https://www.masslandrecords.com/MiddlesexSouth/ The project is not closed out until all obligations are met, including recording requirements.” Communications from Mr. Beach to the Town After receipt of the Town’s December 12th response, Mr. Beach sent Mr. Mercado an email, stating, “[r]egarding the Town’s December 12th response, I’d like to request the records referenced in the statement, [o]ur records show the endorsed amended mylar plan was picked up by Gallagher of Seal Harbor on 11/22/2021. I would consider those records to be part of the original request.” On December 15th, Mr. Beach emailed Mr. Mercado stating, “[c]ould you please [i]nquire with the responding department on the matter [listed in my December 12th email]? I would think that since the responder had already identified records show[ing] endorse[ment], it should be straightforward for them to forward those records as per [the November 29, 2023] request.” On December 19, 2023, Mr. Beach emailed Mr. Mercado again, asking, “[c]an you please let me know today whether the responding department intends to withhold the records they identified below regarding plan endorsement?” After not receiving any response to his December 12th, December 15th and December 19th emails to the Town, Mr. Beach petitioned the Supervisor of Records, and this appeal was opened. 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

Leo Mercado SPR23/3135 Page 3 January 9, 2024 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. Current Appeal In Mr. Beach’s petition, he states, “I received no reply to [the December 12, 2023] request or any subsequent follow-up email. I believe that the records indicated [in the Town’s December 12th response] document that endorsement of a Plan and its retrieval by the Developer for recording are responsive to my original Nov. 29, 2023 request. Even if my December 12, 2023 email is taken as a new request, the statutory 10 business day period has passed; the date of this petition marks the 12th business day since my Dec. 12 follow-up request, and no response has been received.” Based on the Town’s response, coupled with Mr. Beach’s petition, it is unclear whether the Town possesses the additional responsive record, and when the Town intends to provide the record. 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). Please be advised, records access officers 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Beach with a response to his request 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. Mr. Beach may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Geoffrey Stephen Beach