Geoff Beach v. Acton, Town of - Town Clerk (SPR 20240115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0115 Leo Mercado Deputy Town Clerk/Records Access Officer Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoff 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 9, 2023, Mr. Beach requested: [a]ll public records related to easements on any property in the subdivision The Preserve at Audubon Hill (aka 46 High Street or Bumble Bee Way, as described in Planning Board Decision PB20-02). This request includes, but is not limited to, documentation of enforceable easements, rights granted by said easements, and any documents, notes, memos, communications (including email or text messages), or other materials, regarding easements relating to the Subdivision. On November 9, 2023, the Town responded and stated, “…in receipt of your request and will provide you a reply as soon as possible, but in any event within the ten (10) business days required by statute. This request will be forwarded to the appropriate Departments. If the responding Department(s) believe that the search and collection of requested documents will take more than two hours, that Department will provide you with an estimate of costs for the retrieval of the requested [p]ublic [r]ecords…” In a November 27, 2023 email, the Town stated, “[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, and not otherwise privileged or exempt from disclosure under the law…” On December 18, 2023, Mr. Beach sent an email to the Town, stating, “…I’ve found that at least four records that I’m aware of were not included. To be sure all records are being identified and to reduce the burden of locating them, I’d like to request emails (with attachments) based on a simple keyword search:” 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 SPR24/0115 Page 2 January 29, 2024 Please send me any emails (and attachments) to or from any Planning or Engineering Division email address, and to/from any email address used by any Planning Board member that contains the words easement or easements during the period 10/1/2020 through [December 18, 2023].” In addition, Mr. Beach asserts concerning his modification of the November 9th request, “[i]f this should be considered as a separate public records request from the [November 9, 2023 request], please treat it as such. On December 19, 2023, Mr. Beach sent an email to: Clerk Department Clerk@acton- ma.gov stating, “(forwarding in case Leo is out on vacation).” On January 8, 2024, Mr. Beach sent another email, directly to Mr. Mercado, stating, “I’m checking in again to ask whether the request [of December 18, 2023] will be fulfilled.” On January 12, 2024, 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); 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 custodian must provide the responsive records. Current Appeal In his January 12, 2024 petition for the current appeal, Mr. Beach states, “[o]n November 27, 2023, the 10th business day following my [November 9th] request, I received a response that included 5 responsive records. I subsequently discovered the existence of at least four additional responsive records that were not provided, through an unrelated Public Records [r]equest and searches on the municipal document sharing site.”

Leo Mercado SPR24/0115 Page 3 January 29, 2024 Where Mr. Beach claims that certain records were not provided, I find the Town must clarify if it possesses additional records responsive to the November 9th 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). Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas, on December 18, 2023, Mr. Beach submitted a modified request, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it intends to respond and/or provide any records responsive to the request. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Town is advised, to the extent possible, records should be provided to Mr. Beach on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Beach 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.

Leo Mercado SPR24/0115 Page 4 January 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach