Amanda Alix v. Shutesbury, Town of (SPR 20240578)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2024 SPR24/0578 Grace Bannasch Town Clerk Town of Shutesbury P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2024, Ms. Alix requested: [1] Copy of MA building code, chapter and section, referenced at the 6/20/23 Library Building Committee meeting presentation by . . . which showed three different schematic designs and had the notation, “per MA code, roof area determines sprinkler requirement threshold;” [2] Any reports submitted to the Select Board by the Shutesbury Chief of Police regarding or referencing the Lot O-32 Remediation Oversight Group or any of its members; [3] All communications, such as emails, text messages, letters, memos, documents, etc., between any Shutesbury Town Official and the MA State Environmental Police regarding a property located at . . . Baker Road, Shutesbury; [4] Enforcement Order against the residents of . . . Baker Rd; and, [5] Invoices for work done on the Locks Pond Culvert project above the original contract amount of $674,788.00. In a February 14, 2024 email to Ms. Alix, the Town Clerk stated, “I was going through my email inbox and realized I missed the [February 1, 2024] email … I’ll work on getting you a response soon.” In an email on February 23, 2024, having received no further response from the Town, Ms. Alix petitioned this office, and this appeal was opened. 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

Grace Bannasch SPR24/0578 Page 2 March 7, 2024 After this appeal was opened, in an email on February 23rd, the Town Clerk provided a response, asserting, “Hi Amanda, I’m still waiting to receive the invoices you requested from the Town Administrator. Once I have those, I’ll be able to respond to your request.” The Town provided a further response on February 24, 2024, including some responsive records. While a determination was pending in this appeal, Ms. Alix emailed the Public Records Division on February 24th and February 26th, indicating that she is dissatisfied with the Town’s February 24th response to her request. 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 its February 24th response, the Town provided records responsive to Ms. Alix’s Request Numbers 1, 4 and 5. Also, the Town indicated that it has no records responsive to Request Numbers 2 and 3. After receiving the Town’s February 24th response, Ms. Alix emailed this office on February 24th, asserting: [t]he response [R]equest No. 1 is not satisfactory. I was sent this information by the Library Building Committee [LBC] [C]hair a few weeks ago and I told her then that this is not what I am looking for. For one thing, this is outdated; the 9th edition of 780 CMR is currently in use and the 10th is pending, but not yet approved. It also does not contain the specific language roof area that [an identified individual] used in his presentation to the LBC last June (per MA

Grace Bannasch SPR24/0578 Page 3 March 7, 2024 [C]ode, roof area determines sprinkler requirement threshold) when referencing the measurements used to remove the fire suppression system from the new library design. In an email on February 26th regarding the Town’s February 24th response, Ms. Alix asserts: [i]n addition to my dissatisfaction with the [T]own’s answer to query No. 1, I also question the [T]own’s response to [R]equest No. 3. After reading the Enforcement Order supplied by the [T]own and noting that Environmental Police Officer . . . was present at the . . . Baker Rd. site visit with SCC, I called the former SCC [C]hair to ask her about communications between the SCC and the Environmental Police. She told me that there were several email communications between herself and [an identified] Officer and that she had not been contacted by the [T]own concerning this public records request. Therefore, I reiterate my request for the emails outlined in [Request] No. 3 of my original request. Under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based on the Town’s February 24th response, in conjunction with Ms. Alix’s petition, it is unclear if the Town and/or its Library Building Committee possesses additional records responsive to Request Number 1. Further, based on Ms. Alix’s February 26th email to this office regarding her Request Number 3, the Town must clarify whether the responsive emails exist. To the extent that the requested records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Alix 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.

Grace Bannasch SPR24/0578 Page 4 March 7, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix