Geoff Beach v. Acton, Town of - Town Clerk (SPR 20240117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0117 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 16, 2023, Mr. Beach requested the following: [1.] All contract documents between GCG Associates, Inc. and the Town of Acton, and all billing statements and invoices from GCG Associates, Inc. since the time they began working with the Town. [2.] All memos, reports, reviews, site visit reports, and other work product from GCG Associates, Inc. related to The Preserve at Audubon Hill. And all of the following records for the periods 4/15/2022-7/31/2022 and 9/1/2023-11/16/2023: [3.] All phone records (call logs, notes, voicemails) of all systems and devices used by [a named individual] while carrying out official duties. [4.] All text messages and chats between [the individual] and any member of the Planning Board, Select Board, [other named individuals and specified phone numbers] [5.] All email communications to or from [the individual] that involve any of the following senders or recipients (including through carbon-copy) [a list of named groups and individuals.] The Town responded on November 27, 2023, providing a fee estimate. Subsequently, I understand Mr. Beach paid the fees. The Town further responded on December 27 and December 29, 2023, providing numerous responsive records. Following further correspondence with the Town, and claiming the Town possesses additional responsive records, Mr. Beach 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 SPR24/0117 Page 2 January 29, 2024 appealed, and this case 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. 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. Fee Waivers In his appeal petition, Mr. Beach explains that “a personal check from the Requestor for $325.00 was hand-delivered to the RAO on 11/28/2023.” Additionally, he contends that “since the threshold for charging a fee, established in M.G.L. c. 66, § 10(e), was not met ... the fee must be waived and petition that this waiver be granted.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see

Leo Mercado SPR24/0117 Page 3 January 29, 2024 also 950 C.M.R. 32.07(2)(k). In this case, where it appears Mr. Beach has paid the fees, and the Town has provided records, the basis of this portion of Mr. Beach’s appeal is unclear. Mr. Beach is advised that all petitions for appeal “shall specifically describe the nature of the requester’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). The Town’s December 27th and December 29th Responses In its December 27, 2023 response, the Town states that Mr. Beach “should have all the records that the Town of Acton has related to this request.” In its December 29, 2023 response, the Town provides additional responsive records and states the following: The emails requested are being reviewed by town counsel, as soon as I receive them, I will forward them to you. The screen shots will need to be prepared by the employee, as soon as I receive them, I will forward them to you. In his appeal petition, Mr. Bach contends, among other things, that “the emails that were requested in line item #5 of the original request, as well as the additional missing records listed in [his] 1/8/2023 email [to the Town], continue to be unreasonably withheld.” Based on the Town’s responses, and the information contained in Mr. Beach’s appeal petition, it is unclear whether the Town possesses additional records responsive to Mr. Beach’s request. If the Town does possess additional records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). 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. Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach