Dennis G. Unger v. West Newbury, Town of - Town Clerk (SPR 20240095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0095 James R. W. Blatchford Town Clerk Town of West Newbury 381 Main Street West Newbury, MA 01985 Dear Mr. Blatchford: I have received the petition of Dennis G. Unger appealing the response of the Town of West Newbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2023, Mr. Unger requested the following records regarding a specific property: [1.] A copy of the original plan submission for a septic disposal works construction permit submitted circa June 1989. (three separate sheets) [2.] A copy of the Septic disposal works permit application submitted circa June 1989. [3.] A copy of the Riverside Engineering As-Built Drawing relating to work on this permit. [4.] A copy of the certificate of compliance that is related to this work. The Town provided a response on December 18, 2023. Unsatisfied with the response, Mr. Unger petitioned this office and this appeal, SPR24/0095, 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. 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

James R. W. Blatchford SPR24/0095 Page 2 January 24, 2024 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. The Town’s December 18th response In its December 18, 2023 response, the Town provides Mr. Unger with records responsive to Item 1 of his request. The Town states that it was unable to locate records responsive to the rest of the request. Unclear if additional records exist Based on the Town’s response, it is unclear if the Town possesses additional records responsive to the request. Specifically, it is unclear if the Town possesses records responsive to Items 2-4 of the request. 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). 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). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Unger 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: Dennis G. Unger