Steven J. Good v. Marshfield, Town of - Office of the Town Clerk (SPR 20241529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1529 Narice A. Casper II Town Clerk Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Ms. Casper: I have received the petition of Steven Good appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2024, Mr. Good requested: …any and all permits related to the work conducted on 3/16/2024 at parcel 05/89 or the beach parking lot on Beach Street…. Specifically, we request any associated land surveys and wetland delineations, the full scope of work to be conducted at this location, all correspondence related to the work and any additional requirements requested of the applicant prior to the start of work. Please include the permit applicant’s name, or if there are no permits, include the name(s) of the town employees responsible for the work. With this request, we would also like to know why the work was completed outside of regular business hours and where the materials used were sourced from. While fulfilling this request, please be sure to check all emails without subject lines and any attachments within emails that may apply to this request. The Town responded on March 28, 2024 and April 9, 2024, providing responsive records. Unsatisfied with the Town’s responses, Mr. Good petitioned this office and this appeal, SPR24/1529, 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

Narice Casper, II SPR24/1529 Page 2 June 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 28th and April 9th responses In its March 28, 2024 response, the Town asserted: This activity was permitted under Floodplain Permit #FP-22-65 and Marshfield Conservation Commission de minimis activity number DMA 22-94. I do not have any email communications in my possession regarding this activity. All documents for the Floodplain Permit are attached. The Marshfield Conservation Commission issued a de minimis activity for this work. All emails and the DMA form have been uploaded[.] Mr. Good communicated to the Town that there were outstanding portions of the request, including “…sourcing of the materials used in the project and … an answer as to why the work was completed on the weekend.” In its April 9, 2024 response, the Town asserted: [1] The work was done on the weekend because that was when the DPW had available personnel to do the job. [2] The pilings are from a stockpile [an identified individual] keeps from builders around town. They are the donated remains of the pilings used in raising houses. Once the pilings are driven they are leveled to the height needed for construction…. [3] The rope is being donated by the Green Harbor Village Association. There is no charge to the Town for the rope. Current Appeal Mr. Good indicated in his appeal that the Town has not provided, “complete information regarding the source of the materials given the sensitive nature of the site location.”

Narice Casper, II SPR24/1529 Page 3 June 4, 2024 No Duty to Create Records Please be advised, 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 upon a telephone conference between a staff attorney of the Public Records Division and a representative of the Town, the Town confirmed that all responsive records to the request have been provided, including all available information related to material sourcing. Conclusion Accordingly, where the Town has confirmed that all responsive records have been provided, I will consider this administrative appeal closed. If Mr. Good is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Steven Good