Geoff Beach v. Acton, Town of - Town Clerk (SPR 20240122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0122 Leo Mercado Deputy Town Clerk 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 30, 2023, Mr. Beach requested the following records related to a specific property subdivision: [1.] Building permits for Lots 1, 2, 3, 4, and all memos, notes, emails, etc. related to the permits including the submission, evaluation, and approval of said building permits. [2.] Occupancy permits for Lots 1, 2, 3, 4 (now know as 1, 3, 5, 7 Bumble Bee Way), and all memos, notes, emails, etc. related to the permits, including application, inspection requests, scheduling of inspections, results of inspections and evaluations, and granting of permits. [3.] All records related to Health Department inspections of the septic systems on Lots 1, 2, 3, 4 since the beginning of the project. The Town provided a response on December 14, 2023. Unsatisfied with the response, Mr. Beach petitioned this office and this appeal, SPR24/0122, 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 SPR24/0122 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. 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. Current appeal In his appeal, Mr. Beach states that “upon inspection [of the records], it was evident that a number of requested records were absent,” specifically “communications and memos relative to the approval of the permits,” and that “to date [he] [has] yet to receive a complete set of the originally requested records.” The Town’s December 14th response In its December 14, 2023 response, the Town provided Mr. Beach with records responsive to his request. Unclear if additional records exist Based on the Town’s response and Mr. Beach’s appeal, it is unclear if the Town possesses additional records responsive to the request. Specifically, it is unclear if the Town possesses “communications and memos relative to the approval of the permits” per Mr. Beach’s appeal. 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. 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 SPR24/0122 Page 3 January 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach