Geoff Beach v. Acton, Town of - Town Clerk (SPR 20240118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0118 Leo Mercado 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 December 21, 2023, Mr. Beach requested: [1.] All records related to the 53G account(s) used in relation to Qualified Consultants utilized by the Planning Board or Planning Division since the beginning of the Town’s engagement with GCG Associates, Inc. [2.] The annual reports specified by MGL 53G for any accounts utilized by the Planning Division or Planning Board to fund Qualified Consultants... [3.] Any records related to the decision to use an external consultant for engineering reviews by the Planning Board or Planning Department, and any records related to the selection of GCG Associates, Inc. for this role, including but not limited to bids, interview documents, and all associated internal and external communications, memos, and approvals. The Town responded on January 8, 2024. Unsatisfied with the response, Mr. Beach petitioned this office and this appeal, SPR24/0118, 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 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 SPR24/0118 Page 2 January 29, 2024 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. See 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. See 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 January 8th Response In its January 8, 2024 response, the Town provided a year-to-date budget report for contractual services encompassing several engineering peer reviews. The Town asserts that this production of records, “…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.” The Town further asserted, “... the Town understands that you have made over twenty Public Records Requests to the Town in the last six months. As a result, the Town would like to caution you that it will consider further Public Records Requests on this topic to be harassment, and the Town will seek protection from the Supervisor of Public Records if these requests continue. See G. L. c. 66, § 10(c); 950 C.M.R. 32.06(4).” Current appeal In his appeal, Mr. Beach noted that this request is seeking “all 53G account transaction records” for the period since the Town’s engagement with GCG Associates, Inc., not merely the 2024 budget report. Mr. Beach also stated, “…at least 9 development projects regulated by the Planning Board have been peer reviewed by GCG Associates, Inc. since 2020. The Town was invoiced for $55,150 for those services, and payments were financed through MGL 53G- regulated accounts.” However, Mr. Beach observed that he was not provided with any records responsive to the second portion of his request. Mr. Beach further noted that he did not receive any records responsive to his request concerning the decision to use external consultants for engineering reviews by the Planning Division or Planning Department and any records related to the selection of GCG Associates, Inc. in this role. Based on Mr. Beach’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses any additional records responsive to his 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). However, custodians are expected to use their superior knowledge of the records in their custody

Leo Mercado SPR24/0118 Page 3 January 29, 2024 to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether any additional records exist. 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 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: Geoff Beach