Maria Kopicki v. Amherst, Town of - Office of the Town Clerk (SPR 20242825)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2825 Susan Audette Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Audette: I have received the petition of Maria Kopicki appealing the response of the Town of Amherst (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2024, Ms. Kopicki requested the following: Any communications from May 1, 2023 to the present, to or from any Amherst Town Councilors (past or present) and [an identified individual], regarding [the Jones Library building project and] the following: Massachusetts Rehabilitation Historic Tax Credits[;] Standards for Rehabilitation of Historic Buildings[;] Section 106 or environmental review[;] OR federal or state grants[.] On September 17, 2024, the Town responded and provided responsive records. On September 30, 2024, Ms. Kopicki narrowed her request and stated, “my request is for any communications to or from any Town Councilors regarding Historic Tax Credits AND any communications to or from [an identified individual] regarding Historic Tax Credits. It was not just for records between Councilors and [an identified individual].” Subsequently, the Town provided a response on October 1, 2024. Unsatisfied with the Town’s responses, Ms. Kopicki petitioned this office and this appeal, SPR24/2825, 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

Susan Audette SPR24/2825 Page 2 October 25, 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. 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. Current appeal In her appeal petition, Ms. Kopicki states, “I made [a records request] to the Town of Amherst that [has] not been met. . . . [I]t has now been over . . . 20 business days[.]” She further notes, “I have emailed those who I was told were responsible for [this request] multiple times. In addition, I have made several phone calls to try to resolve this but have either had to reply to voicemails or no success in receiving the records.” The Town’s Responses On September 17, 2024, the Town provided three responsive records and stated, “[t]he attached three records are in response to your public records request below, dated September 11, 2024. Following Ms. Kopicki’s narrowing of her request on September 30, 3024, the Town provided a response on October 1, 2024, and advised, “[p]lease note that per the public records law, the timeframe for a municipality to provide records shall not exceed 25 business days following the initial receipt of the request for public records. We are currently within this timeframe. . .” Where Ms. Kopicki narrowed her request on September 30, 2024, and the Town indicated in its October 1, 2024 response that it intends to provide a response within the allowed statutory timeframe, the basis of Ms. Kopicki’s appeal is unclear. See G. L. c. 66, § 10(b)(vi). Conclusion In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A (a). Given that no violation of G. L. c. 66, § 10 has been asserted by Ms. Kopicki in her appeal petition, I am unable to issue a determination at this time. Once the Town provides a response to Ms. Kopicki, she may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Susan Audette SPR24/2825 Page 3 October 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Maria Kopicki