Sean Burke v. Milton, Town of - Town Clerk (SPR 20242517)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2024 SPR24/2517 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Sean Burke appealing the response of the Town of Milton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2024, Mr. Burke requested, “any communication between the Commission on Disabilities and any experts or 3rd parties that reviewed the Lower Gile Road project for ADA compliance, any reports generated, and any findings reported.” Additionally, on May 9, 2024, Mr. Burke added to his request and sought “meeting minutes, approved or draft if they are not approved, from Disability Commission meetings held between 2022 and 2024.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1999 Determination of the Supervisor of Records (July 26, 2024). In my July 26th determination, I ordered the Town to provide an estimated date as to when it would provide responsive records. Subsequently, the Town responded on August 6, 2024, providing responsive records. Unsatisfied with the Town’s August 6th response, and contending that the Town possesses additional responsive records, Mr. Burke 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, § 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

Susan M. Galvin SPR24/2517 Page 2 September 17, 2024 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 August 6th Response In its August 6, 2024 response, the Town produced thirty (30) pages of records, including documents titled, “Milton Commission on Disability Notes 3.29.22” and “Notes from 11/1/23 Commission on Disability Meeting[,]” as well as numerous copies of emails. In its cover letter accompanying the responsive records, the Town states: In response to your public records request . . . [r]ecords responding to your request for meeting minutes are provided in note form, communication between Commission on Disability Chair and the Architectural Access Board, Office of Public Safety and Inspections. The Chair of the Commission on Disabilities identified . . . [a named individual], who spoke publicly during the Annual Town Meeting in May, as the “expert who reviewed and reported to her on the ADA non-compliant access to the Lower Gile Road Project.” Current Appeal In his appeal petition, Mr. Burke states, “[t]he town was compelled to respond. The response was incomplete.” He further reiterates correspondence with the Town dated August 9, 2024, in which he explained the following: The town of Milton Agenda center shows that meeting were held on 6/29/23, 6/8/23, 6/22/22, and 2/14/22. These minutes were requested but have not been provided. My request also asked for communication between the Commission on Disabilities and any experts or 3rd parties that reviewed the Lower Gile Road project for ADA compliance, any reports generated, and any findings reported. The chair has indicated that [an identified individual is] their expert. No communications, reports or findings have been provided. Please confirm that there has been no communication between the Commission and [the identified individual] and that there is no documentation of her findings.

Susan M. Galvin SPR24/2517 Page 3 September 17, 2024 In a September 13, 2024 conversation between a representative of the Town and a Public Records Division staff member, the Town informed this office that the Town Clerk’s Office does not possess additional records responsive to the portion of Mr. Burke’s request seeking, “any communication between the Commission on Disabilities and any experts or 3rd parties that reviewed the Lower Gile Road project for ADA compliance, any reports generated, and any findings reported.” The Town additionally stated that meeting minutes do not exist for Commission on Disabilities meetings dated June 29, 2023, June 8, 2023, June 22, 2022, and February 14, 2022. Diligent search; Records in Existence; Possession, Custody, or Control 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). 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). While the Town advised that the Town Clerk’s Office does not possess additional responsive records, the Town must use its superior knowledge of the records, and forward the request to the appropriate Department(s) within the Town that may have possession, custody, or control of records responsive to “any communication between the Commission on Disabilities and any experts or 3rd parties that reviewed the Lower Gile Road project for ADA compliance, any reports generated, and any findings reported.” It remains unclear whether the Town forwarded the request to the Commission on Disability and/or any other Town departments that may be in possession of the records. Further, where the Town has explained that meeting minutes do not exist for the four Commission on Disabilities meetings described above, the Town must explain whether the meeting minutes existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If records were destroyed, I find that the Town must demonstrate whether it followed proper records retention protocol. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Burke with a response to his 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.

Susan M. Galvin SPR24/2517 Page 4 September 17, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Sean Burke