Thomas Siefert v. Shutesbury, Town of (SPR 20241770)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1770 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P.O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Thomas Siefert 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 April 1, 2024, Mr. Siefert requested “all of the communications that the Town sent and/or received regarding the Shutesbury Athletic Club’s request in April, 2022, to extend their hours for outdoor entertainment[.]… This list includes … the 29 responses that were referred to during the Select Board meeting on April 26, 2022.” Previous appeal This request was the subject of a previous appeal. See SPR24/1183 Determination of the Supervisor of Records (May 3, 2024). In my May 3rd Determination, the Town informed this office that it intended on providing a supplemental response. The Town responded on May 12, 2024. Unsatisfied with the response, Mr. Siefert petitioned this office and this appeal, SPR24/1770, 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). 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 SPR24/1770 Page 2 June 27, 2024 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 May 12th Response In its May 12, 2024 response, the Town offered for Mr. Siefert to look through files in person and make copies of the records he seeks. Subsequently, Mr. Siefert accepted the invitation and received numerous copies of responsive records. Current appeal In his appeal petition, Mr. Siefert states the following: The Clerk and I were fortunately able to retrieve what appear to be all of the online records relevant to the appeal. The Clerk and I were unfortunately not able to retrieve one relevant record referred to as a “hand delivered” letter during the Select Board meeting of April 26, 2022. Records in Existence 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). Additionally, 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). 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). In a telephone conversation between a staff attorney of the Public Records Division and the Town on June 21, 2024, the Town confirmed it does not possess additional records responsive to the request. Specifically, the Town explained that it is not able to identify which of the responsive records is the “hand-delivered letter” referred to in Mr. Siefert’s appeal due to a lack of specific information about the letter, and further states that hand-delivered items to Town officials are normally digitized for storage.

Grace Bannasch SPR24/1770 Page 3 June 27, 2024 Conclusion Where the Town has confirmed it does not possess additional responsive records, I will consider this administrative appeal closed. If Mr. Siefert 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: Thomas Siefert