Michael Meyers v. Andover, Town of - Town Clerk (SPR 20240853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0853 Douglas W. Heim, Esq. Town Counsel Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Attorney Heim: I have received the petition of Michael Meyers appealing the response of the Town of Andover (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2024, Mr. Meyers requested: [1.] The most recent certifications for the Andover free cash, local receipts in excess of budget estimate and excess levy limit. [2.] The Andover by-laws or policies for utilizing these funds. [3.] The procedures or protocols for amendments affecting the above at an annual town meeting. Previous Appeal This request was the subject of a previous appeal. See SPR24/0826 Determination of the Supervisor of Records (March 20, 2024). In my March 20th determination, I learned that the Town provided responses to Mr. Meyers on March 19, and March 20, 2024. Unsatisfied with the responses, Mr. Meyers petitioned this office and this appeal, SPR24/0853, 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

Douglas W. Heim, Esq. SPR24/0853 Page 2 April 4, 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. 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 March 19th and March 20th Responses In its March 19, 2024 response, the Town stated: [1.] Information on free cash certifications, local receipts, and the levy limit can be found on a publicly accessible website from the Department of Revenue. [2.] Policies for using these funds can be found within the FY2025 Budget. In addition, as it relates to the use of Free Cash, the Town of Andover also follows guidance from the Department of Revenue. [3.] These funds are used consistent with select board policies. [4.] The protocol for amending articles at [a] Town Meeting doesn’t vary depending on the substance of the articles. Amendments for Town Meeting articles can be sent to the Town Clerk, or Moderator, or Town Counsel before the meeting. Alternatively amendments can be submitted at the Town Meeting to the ombudsman, who will distribute copies of the amendments to the Moderator and Town Clerk/Town Counsel. In its March 20, 2024 response, the Town stated, “Mr. Meyers followed up with [an identified individual] regarding his request in the afternoon of March 18, 2024. [An identified individual] worked with the town departments to provide Mr. Meyers with directions on how to access the information he was requesting…” Current appeal In his appeal, Mr. Meyers asserted, “[o]n 3/19/24 Andover responded to my 2/22/24 PRR. The response contained two lines referencing a DOR website and the 180 page fy 25 Andover budget. The 3/19/24 response from the town is purposely incomplete”

Douglas W. Heim, Esq. SPR24/0853 Page 3 April 4, 2024 Based on Mr. Meyer’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 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. Meyers 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. Meyers 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: Michael Meyers