Geoff Beach v. Acton, Town of - Town Clerk (SPR 20241125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1125 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 January 2, 2024, Mr. Beach requested the following: 1) All records documenting rules, regulations, policies, and procedures regarding procurement that were in place in the Town of Acton at any time during the period 6/30/2018 to the present. 2) (a) All records related for MGL Chapter 30B compliance for the 3/11/2020 attached contract agreement with GCG Associates, Inc., including, but not limited to, records of estimates of the contract value prior to bid solicitation, any requests for quotes, proposals, or invitations for bids, public notice of the call for quotes/ proposals/bids, all quotes/proposals/bids received, the notice of award, and written rationale for selection of GCG Associates, Inc. (b) All communications not included in #4, below, regarding the decision to seek an external Peer Review consultant for the Town and the decision to use GCG Associates, Inc. for that role. 3) Any records related to extension of the terms of the attached 3/11/2020 GCG Associates, Inc. Contract beyond the 12/31/2020 end date, and any records related to subsequent agreements or contracts with GCG Associates, Inc. for peer review services. 4) For the period 6/1/2019 to the present: All Town of Acton emails containing any of the words {“GCG”, “53G”, “peer”, or “consultant”} and involving any of the following senders or recipients: [a list of named individuals], and any member of the Planning Board, Select Board, Zoning Board of Appeals, and Conservation Commission serving at any part of the requested time period. 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 SPR24/1125 Page 2 April 30, 2024 5) All emails sent to or received from any email with the domain “gcgassociates.net” in the period 6/30/2019 to 4/1/2020. 6) For the list of projects [in a specified list] that have been reviewed by GCG Associates, Inc., please provide all of the following records that exist: (a) Any requests for quotes for peer review from other vendors, and any quotes received (b) review fee estimate(s) provided by GCG Associates, Inc. (c) Notice to proceed as described in the 3/11/2020 GCG Associates, Inc. contract (d) The final report of the 53G account used for the project, in the form provided to the applicant as per MGL c44 sec 53G. Previous Appeal and Petition This request was the subject of a previous appeal and a petition from the Town. See SPR24/0279 Determination of the Supervisor of Records (February 12, 2024) and SPR24/0646 Determination of the Supervisor of Records (March 7, 2024). In my March 7th determination, I found that an extension of time could not be granted, and that to the extent possible, records must be provided on a rolling basis. Claiming to have received no further response from the Town, Mr. Beach further 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. Current Appeal In his appeal petition, Mr. Beach indicates that “[t]he requested fee was paid in person” on February 29, 2024, and he contends that “[t]he Town has not responded or provided a single responsive record.”

Leo Mercado SPR24/1125 Page 3 April 30, 2024 Timeliness for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that ... for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Beach paid the requested fees on February 29, 2024, and a time extension could not be granted, and the Town has not provided responsive records, nor cited an exemption for withholding records, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Town must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Once fees are paid, a records custodian must provide the responsive records. G. L. c. 66, § 10(a)(iii). 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