Geoff Beach v. Acton, Town of - Town Clerk (SPR 20241121)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2024 SPR24/1121 Leo Mercado Deputy 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 November 16, 2023, Mr. Beach requested the following: [1.] All contract documents between GCG Associates, Inc. and the Town of Acton, and all billing statements and invoices from GCG Associates, Inc. since the time they began working with the Town. [2.] All memos, reports, reviews, site visit reports, and other work product from GCG Associates, Inc. related to The Preserve at Audubon Hill. And all of the following records for the periods 4/15/2022-7/31/2022 and 9/1/2023-11/16/2023: [3.] All phone records (call logs, notes, voicemails) of all systems and devices used by [a named individual] while carrying out official duties. [4.] All text messages and chats between [the individual] and any member of the Planning Board, Select Board, [other named individuals and specified phone numbers] [5.] All email communications to or from [the individual] that involve any of the following senders or recipients (including through carbon-copy) [a list of named groups and individuals.] Previous Appeal and Petitions This request was the subject of a previous appeal and two petitions from the Town. See 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 SPR24/1121 Page 2 April 29, 2024 SPR24/0117 Determination of the Supervisor of Records (January 29, 2024), SPR24/0467 Determination of the Supervisor of Records (February 16, 2024), and SPR24/0646 Determination of the Supervisor of Records (March 7, 2024). In my March 7th determination, I found that an additional extension of time could not be granted, and that to the extent possible, records must be provided on a rolling basis. Following further correspondence, the Town provided responsive records on March 11, and March 12, 2024. Unsatisfied with the Town’s response, and claiming the Town possesses additional responsive records, Mr. Beach appealed, and this case 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 11th and March 12th Responses In its previous December 27, and December 29, 2023 responses, the Town provided numerous responsive records. In its March 11, and March 12, 2024 responses, the Town provides further responsive records to Mr. Beach. Current Appeal In his appeal petition, Mr. Beach contends that the Town possesses the following additional records responsive to his request: • Work product for GCG invoice 15750, dated 10/24/2020 for “peer review of project” and invoice 18565 for “6/7/2023 “Review As-Built plan and budget site visit,” both pertaining to the project “46 High Street”.... • Invoices from GCG Associates, Inc. for peer review of the Definitive Subdivision at 47 Conant Street (Planning Board Decision PB21-02 “Amanda

Leo Mercado SPR24/1121 Page 3 April 29, 2024 Lane”). There were five reviews performed in 2021... and additional charges were posted to the project’s 53G account in FY2024 for as-built review.... • All invoices from GCG Associates, Inc. for work related to the Acton Avalon II project (permitted through the Acton Zoning Board of Appeals). GCG Associates, Inc. conducted reviews of the as-built for this project in 2022. Records in Existence; Possession, Custody, or Control Please be 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based on the Town’s March 11th and March 12th responses, and the information provided in Mr. Beach’s appeal petition, it is unclear whether the Town possesses the additional records described in Mr. Beach’s appeal. If the Town does possesses additional records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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. Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach