Andy Starvaski v. Lunenburg, Town of (SPR 20242705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2024 SPR24/2705 Carter Terenzini Interim Town Manager Records Access Officer Supervisor 17 Main Street P. O. Box 135 Lunenburg, MA 01462 Dear Mr. Terenzini: I have received the petition of Andrew Starvaski appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2024, Mr. Starvaski requested “…copies of all emails that were exchanged between the then [identified Town Manager] and an [identified] Select Board member from January 1, 2024 to August 4, 2024.” On September 4, 2024, the Town provided Mr. Starvaski with a response. In a September 5, 2024 email to the Town, Mr. Starvaski modified his request to: [1] only include emails specifically between [an identified former Town Manager] and [an identified Select Board member], and not all emails that were sent to the entire Select Board. Additionally, [2] I would like to request those emails that were exchanged between [the two identified individuals] from May 1, 2024 through July 31, 2024; [3] I also understand that [the Town] must review these emails before releasing them to me. I request that if any emails are deemed not releasable, that [the Town] inform me of the number of emails that were provided to me and the nature of the reasoning for doing so; and, [4] … I request that the emails be provided in 3 deliveries; the first being the emails from June 1-June 30, once this batch of emails are provided, I request the second group of emails from July 1-July 31 be provided and then finally the emails from May 1-May 31, 2024. Also in Mr. Starvaski’s September 5th modified request, he states, “…rather than print these emails, I can provide [the Town] with thumb drives to store and deliver the emails on.” 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

Carter Terenzini SPR24/2705 Page 2 October 9, 2024 On September 26, 2024, after not receiving any further response, Mr. Starvaski petitioned this office and this appeal was opened. 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 September 4th response In the Town’s September 4, 2024 response, the Town stated, “I wanted to confirm our conversation of last evening … We are working with IT to gain access to [an identified individual’s email box] and review any submission on it for response … In the meantime, as discussed, I am requesting that you give consideration to narrowing the scope of your request in [an] effort to save time and monies.” Current Appeal In Mr. Starvaski’s September 26, 2024 petition, he states, “…[a]fter not hearing a reply from the Town, I resubmitted my request and copied the Interim Town Manager. After still no response, I personally went to the Town Hall and spoke directly to the [Interim] Town Manager. After speaking with him, I resubmitted a modified request to him on Sept. 5. After 14 business days without a response, I reached back out to the Town Manager on Sept. 23. I still have not received a response and am requesting your assistance in resolving this issue…” On October 8, 2024, Mr. Starvaski sent Mr. Terenzini an email stating, “I am following up and requesting the status on my PRR. As you may recall on Sept 5, I modified my original PRR that was made on Aug 12 and significantly reduced the [scope] of my request. This was done in an effort to expedite my PRR. On Oct 1, I came once again to the Lunenburg Town Hall

Carter Terenzini SPR24/2705 Page 3 October 9, 2024 to discuss with you in person the status of my request. I left with the impression that you would be talking with the IT department the next morning and I would be receiving the requested documents shortly…” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Starvaski submitted his modified request on September 5, 2024, and the Town has not provided responsive records, nor cited an exemption for withholding records, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Town must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Starvaski with a response to his September 5, 2024 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. Mr. Starvaski may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1).

Carter Terenzini SPR24/2705 Page 4 October 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Starvaski