Lee Jundanian v. Uxbridge, Town of - Town Clerk (SPR 20242172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2024 SPR24/2172 Kelly J. Cote, CMC Town Clerk Town of Uxbridge 21 South Main Street Uxbridge, MA 01569 Dear Ms. Cote: I have received the petition of Lee Jundanian appealing the response of the Town of Uxbridge (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2024, Mr. Jundanian requested, “. . . a copy of the Memorandum referenced in the Board of Selectmen’s Minutes dated April 25, 2016[.]” The Town provided a response on July 30, 2024. Unsatisfied with the Town’s response, Mr. Jundanian appealed, and this case, SPR24/2172, 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. 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

Kelly J. Cote, CMC SPR24/2172 Page 2 August 14, 2024 The Town’s July 30th Response In its July 30, 2024 response, the Town states, “the Town of Uxbridge has no records responsive to your request.” Current appeal In his appeal to this office, Mr. Jundanian states, “I am asking that the Town of Uxbridge conduct a more exhaustive search of its records. Without getting into details, a recent (and unrelated) Public Records Act Request, in which the Town indicated it had no records, has turned out to [be] wholly inaccurate. Either the Town is being disingenuous in their response(s) to me or ‘sloppy’ in maintaining important records that are material to its proper governance, conduct and accountability to those who are affected by their actions.” While this appeal was pending, the Town emailed this office on August 12, 2024, and stated: The Town does not possess the requested record. Prior to responding to Mr. Jundanian, the Town conducted a comprehensive search and was unable to locate the memorandum referenced in the minutes of the April 25, 2016 Board of Selectmen meeting. After this appeal was filed, a second comprehensive search was undertaken and the Director of the Department of Public Works watched the April 25th meeting to get a better understanding of the memorandum referenced in the minutes. The Town and its Department of Public Works were again unable to find the memorandum referenced. The Town does have memorandums regarding the Department’s reviews of permitting applications in the East Street area. The Town also has e-mails where the Department communicated with its then-water consultant regarding engineering recommendations. However, no memorandum from the Director to the Board as described in the minutes could be located. The Town notes that Schedule 01.072 of the Municipal Records Retention Schedule requires documents and exhibits used at a public body meeting to be kept for “6 months by the public body and thereafter by the normal custodian of the record for the period of retention either set in the Municipal Schedule or as otherwise required by law.” Schedule 01.021 further requires that “[c]orrespondence documenting policy development, sent or received by individuals who exercise decision-making authority on policy matters” be retained for 5 years. 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

Kelly J. Cote, CMC SPR24/2172 Page 3 August 14, 2024 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 August 12, 2024, the Town confirmed it has no records responsive to the request. Conclusion Where the Town confirmed that it does not possess records responsive to Mr. Jundanian’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Jundanian 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: Lee Jundanian