Amanda Alix v. Shutesbury, Town of (SPR 20241736)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1736 Grace Bannasch Town Clerk Town of Shutesbury P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2024, Ms. Alix requested: [1] Copy of MA building code, chapter and section, referenced at the 6/20/23 Library Building Committee meeting presentation by . . . which showed three different schematic designs and had the notation, “per MA code, roof area determines sprinkler requirement threshold;” [2] Any reports submitted to the Select Board by the Shutesbury Chief of Police regarding or referencing the Lot O-32 Remediation Oversight Group or any of its members; [3] All communications, such as emails, text messages, letters, memos, documents, etc., between any Shutesbury Town Official and the MA State Environmental Police regarding a property located at . . . Baker Road, Shutesbury; [4] Enforcement Order against the residents of . . . Baker Rd; and, [5] Invoices for work done on the Locks Pond Culvert project above the original contract amount of $674,788.00. Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0578 Determination of the Supervisor of Records (March 7, 2024). In my March 7, 2024 determination, I directed the Town to clarify whether it possessed additional records responsive to Items 1 and 3 of the request. The Town responded on March 19, 2024. Unsatisfied with the Town’s response, Ms. Alix appealed, and this case was opened. 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

Grace Bannasch SPR24/1736 Page 2 June 25, 2024 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 19th Response In its March 19, 2024 response, the Town asserts, “[i]n regards to Item #3: Based on the information you provided, I asked the Land Use Clerk to double check for emails between Conservation Commission (Commission) and the Environmental Police about the . . . Baker [R]d residence. [The Land Use Clerk] found several additional emails, which are included, along with the attachments associated with those emails. [The Land Use Clerk] also reached out to [an identified Officer] to see if he had any additional records. I’ve attached his response as well in case you wanted to follow up on his recommendation. In regards to Item #1: The [Town] does not have its own building code. Massachusetts building codes, both current and previous versions, can be found on the state website here: https://www.mass.gov/massachusetts-state- building-code-780-cmr. Beyond this, the Town has no further records responsive to this part of the request.” Current Appeal In the appeal petition, Ms. Alix asserts, “…I believe the final batch of documents, sent to me on March 19, 2024, did not include all of the information listed in the original request. Specifically, I refer to original [R]equest [Number] 3, filed on February 1, 2024: All communications such as emails, text messages, letters, memos, documents, etc., between any [Town] Official and the MA State Environmental Police regarding a property located at … Baker Rd., Shutesbury. I have been advised by the former (Commission) Chair that more emails between herself and the Environmental Police exist and reside with her though she was never asked for them by [T]own officials pursuant to my request/appeal. Despite the resignation of the

Grace Bannasch SPR24/1736 Page 3 June 25, 2024 Commission Chair on January 11, 2024, the [T]own should expect that she has certain documents and therefore should have procured the requested emails from her…” 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). Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. Office of the Sec’y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2020); see also G. L. c. 66, § 1. In light of Ms. Alix’s petition, I find that the Town must clarify whether additional records exist. To the extent that the requested records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Alix 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: Amanda Alix