Walter Janowicz v. Sterling, Town of - Town Clerk (SPR 20242750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2024 SPR24/2750 Kathleen Farrell Town Clerk Town of Sterling 1 Park Street, Room 113 Sterling, MA 01564 Dear Ms. Farrell: I have received the petition of Walter Janowicz appealing the response of the Town of Sterling (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2024, Mr. Janowicz requested “[a]ny and all documents produced … or received by the Sterling Conservation Commission between February 1, 2019 to present concerning [a specific address].” The Town provided a response on September 13, 2024. Unsatisfied with the response, Mr. Janowicz petitioned this office and this appeal, SPR24/2750, 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 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

Kathleen Farrell SPR24/2750 Page 2 October 16, 2024 custodian must provide the responsive records. The Town’s September 13th Response In its September 13, 2024 response, the Town provided records responsive to Mr. Janowicz’s request. Current Appeal In his October 3, 2024 petition to this office, Mr. Janowicz characterized the Town’s response as incomplete. Specifically, Mr. Janowicz noted that the Town’s response contains a communication between two Town employees which “… references an attached document that was not provide as part of the response …” Likewise, Mr. Janowicz noted that the Town’s response “… references the [Massachusetts Department of Environmental Protection] … [but] does not include any communication between the MassDEP and the Sterling Conservation Commission.” Mr. Janowicz also suggested that while “[t]he response did provide an enforcement order … no Letter of Determination was provided … which would be needed to show that the Conservation Commission had jurisdiction to issue the enforcement order.” Mr. Janowicz also claimed that the Town’s response did not contain certain documents that had been provided to the Town by the owner of the parcel at issue, and that minutes from meetings of the Town Conservation Commission had not been publicly available since March 7, 2023. In an email to this office dated October 7, 2024, the Town stated that Mr. Janowicz’s request had been forwarded to the appropriate staff for further review. Based on Mr. Janowicz’s petition and the Town’s responses it is unclear whether the Town possesses additional records responsive to Mr. Janowicz’s request. Specifically, the Town must clarify whether it possesses records of the kind Mr. Janowicz describes in his appeal petition. 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Janowicz 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. Mr. Janowicz may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Kathleen Farrell SPR24/2750 Page 3 October 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Walter Janowicz