Elaine Beilin v. Truro, Town of - Town Clerk (SPR 20240999)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2024 SPR24/0999 Noelle Scoullar Executive Assistant Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Elaine Beilin appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 17, 2023, Ms. Beilin requested: [1.] Any documents or other communications related to plans for, obstacles to or exploration of possible development of housing on Town Hall Hill to or among Town officials or employees; to or among Town of Truro Board or Committee members, vendors and contractors; and to and from any taxpayer or resident (full or part-time) related to same. [2.] Any documents or other communications related to plans for possible development of housing on Town Hall Hill with any officer, employee or member of the Board of Directors or Advisory Board of the Community Development Partnership. [3.] Any documents or other communications related to plans for possible development of housing on Town Hall Hill with officials or staff of any other Municipality or County Agency in Barnstable County; and with officials or staff of any agency or office in the Commonwealth of Massachusetts. [4.] Any documents or other communications related to plans for possible development of housing on Town Hall Hill that were shared or discussed by any Town official, staff, consultant, vendor or member of the Truro Housing Authority that relates to the statement in the draft Housing Production Plan to the decision to move the DPW off of Town Hall Hill and the identification of this location as potential site for housing. 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

Noelle Scoullar SPR24/0999 Page 2 April 16, 2024 [5.] Any documents evidencing the date(s) of discussions relating to moving the DPW off of Town Hall Hill to allow for the construction of Housing on Town Hall Hill. Prior Appeal This request was the subject of a prior appeal. See SPR23/2396 Determination of the Supervisor of Records (October 23, 2023). In my October 23rd determination, I found that the Town must revise its fee estimate or provide further explanation of its fee estimate. The Town provided a response on March 5, 2024. Unsatisfied with the response, Ms. Beilin petitioned this office and this appeal, SPR24/0999, 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. The Town’s March 5th Response In its March 5, 2024 response, the Town stated, “[t]he Town of Truro is providing the within response to your inquiry. Under the Public Records Law, the Town is not required to answer questions in response to a public records request. In response to your e-mail and in reviewing in good faith, the Town incorporates its prior response to your request in accordance with the Public Records Law, dated July 17, 2023.” Current Appeal In her appeal, Ms. Beilin states, “the Town’s actual production of documents made in December was woefully inaccurate and, I earnestly believe, not done in good faith… In early

Noelle Scoullar SPR24/0999 Page 3 April 16, 2024 January, I wrote to the Town detailing my concerns about its production and asked if it intended to make additional and more responsive production. Having heard nothing back from the Town, I sent a reminder on March 5 and re-forwarded my January note, explaining why production was inadequate and/or irrelevant. I received a… response on March 5 basically conveying that the Town considers its efforts complete… The documents that I was given in December were non- responsive… The majority of the documents and attachments supplied were wholly unrelated to the topic of my request, some not even relating to Truro… Clearly other documents must exist…” Possession, Custody, or Control The Town is advised that 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). Further, in accordance with the Public Records Law, 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). Based on Ms. Beilin’s appeal, it is unclear whether the Town possesses additional records responsive to her request. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Ms. Beilin 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. Sincerely, Manza Arthur Supervisor of Records cc: Elaine Beilin