Geoff Beach v. Acton, Town of - Town Clerk (SPR 20243127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2024 SPR24/3127 Leo Mercado Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoff Beach appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2024, Mr. Beach requested the following records [“r]egarding the attached endorsed Record Plan of a Subdivision, and the associated Certificate of Board Action referenced on said Plan ...”: [1] The completed Application for Approval of Definitive Plan (Form DP in the Town of Acton Subdivision Rules and Regulations). [2] A completed Designer’s Certificate (Form DC in the Town of Acton Subdivision Rules and Regulations). [3] A record of a notice of Public Hearing. [4] A certification of no appeals from the Town Clerk. [5] The entire approved definitive plan of the subdivision as amended by the Board in its decision of approval, as referenced in Town of Acton Subdivision Rules and Regulations Sec. 7.1.1. Please include the entire Contents of the Definitive Plan as listed in Town of Acton Subdivision Rules and Regulations Sec. 5.3 including, but not limited to “the definitive plan … prepared by a registered engineer and land surveyor,” and “storm drainage runoff” calculations used for storm water drainage system design … prepared by and display[ing] the seal of a registered professional engineer. [6] A record of receipt of the entire approved definitive Plan that identifies the recipient and the receipt date. The Town responded on November 18, 2024. Unsatisfied with the Town’s response, Mr. Beach petitioned this office and this appeal, SPR24/3127, was opened as a result. 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

Leo Mercado SPR24/3127 Page 2 December 4, 2024 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. Identity or Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Beach’s interest in obtaining the records shall have no bearing on the public nature of the records. The Town’s November 18th response In its November 18, 2024 response, the Town asserted, During the pendency of this request, you were one of the plaintiffs who filed an action against the Town, captioned Fishman, et al., v. Capette, et al., Super. Ct. C.A. No. 2481cv2984. It appears that the records you seek relate to the matter that is now in litigation. It is more appropriate to seek such records by means of court discovery procedures, not the public records law. Because the records you seek are the subject of a dispute in active litigation and you have a unique right of access to such materials through discovery procedures, the public records law is not the proper mechanism to make such a request ... Given that, the Town does not intend to produce those records a second time in response to your public records request.

Leo Mercado SPR24/3127 Page 3 December 4, 2024 Current appeal In his appeal, Mr. Beach states, “[t]he requestor has not previously requested these records and therefore the comment regarding production of records ‘a second time’ is unclear. The requestor notes that no records whatsoever have been sought through discovery procedures relative to the civil action referenced by the Town. Regarding the issue of active litigation, the Town has not demonstrated that the records are ‘the subject of a dispute in active litigation;’ to the contrary, the requested records are all records that are expected to be on file with the Acton Town Clerk per the Town of Acton Subdivision Rules and Regulations.” In a telephone conversation on December 4, 2024, the Town confirmed that the requested records are directly related to the pending litigation, Fishman, et al. v. Capette, et. al., as Member of the Planning Board of the Town of Acton, Middlesex Superior Court, Docket number 2481CV02984. Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach