Rachel Herman v. Templeton, Town of - Town Administrator (SPR 20243273)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2024 SPR24/3273 Adam D. Lamontagne Town Administrator Town of Templeton Town Hall, Room 6 P. O. Box 620, 160 Patriots Road East Templeton, MA 01438 Dear Mr. Lamontagne: I have received the petition of Rachel Herman appealing the response of the Town of Templeton (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, Ms. Herman requested: … public records that relate to . . . Holman Street Properties and MacVallee LLC from January 2022 to present and involve plans, requests, questions, offers, negotiations, tax increment financing discussions and agreements, or references to the same. [This includes] emails, letters, packets, calendar entries, memos, journal entries, text messages, phone logs, notes … and drafts. Select Board Meeting [on] May 25, 2022, beginning about 2:26:00, [in] the agenda, Economic Development for former Temple Stuart Site, involved reference to the above documents. The EDIC group, Planning Board, Select Board, and Assessors, and your office all were involved per this video. Please be sure to provide a copy of the business plan mentioned by [identified individual]. … It was clear from [the town meeting] video that others at town hall [were] also contacted - documents are expected to have been generated from this contact prior to meeting. Please be sure the above referenced departments produce records per this request. Previous Appeals This request was the subject of previous appeals. See SPR24/2905 Determination of the Supervisor of Records (November 1, 2024) and SPR24/3084 Determination of the Supervisor of Records (November 25, 2024). In my November 25th Determination, I learned the Town 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

Adam D. Lamontagne SPR24/3273 Page 2 December 13, 2024 intended on providing Ms. Herman with a supplemental response. The Town provided a response on December 4, 2024. Unsatisfied with the Town’s response, Ms. Herman petitioned this office and this appeal, SPR24/3273, 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. Att’y 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 December 4th Response In its December 4, 2024 response, the Town states, “[w]e do have records that are relevant to your request … public records that relate to . . . Holman Street Properties and MacVallee LLC from January 2022 to present. I would like to note that we already started providing documents to you on September 26, 2024 before you started objecting and filing appeals with the Commonwealth. We may need to redact portions due to Attorney-Client privilege as this is an ongoing case involving the Town of Templeton. We plan to respond with the documents on a rolling basis and we are hopeful to get the documents to you within 25 business days.” Current appeal In her appeal, Ms. Herman states, “I believe the town is already in violation of the law due to the failure to provide records and is now proposing further failure to provide records…. Many records that I have requested have not been provided and those that have are excessively redacted.” Ms. Herman sent several emails to this office while this case was open. In her email sent on December 10, 2024, she states, “[p]lease provide the records requested in electronic format as is reasonable… The ‘too large for your email’ argument is not supported by the evidence. The

Adam D. Lamontagne SPR24/3273 Page 3 December 13, 2024 [T]own can easily separate the materials into multiple files… Please separate the requested materials into files that are transmissible via email.” The Town responded on December 11, 2024. The Town states, “[y]our email will not accept the electronic record and we do have the staff time to rescan in smaller batches to accommodate your email accepting them. We will have the records that we printed out for you in the office.” Ms. Herman responded the same day. She states, “[the] town has routinely provided records requested via email to myself and other requestors. Second, my email will accept up to a significant amount, 50 MB, most mail programs can send up to 25MB, and many of your files are on your computer system already and do not need scanning. Third, paper records can be scanned and uploaded about as quickly as printed on physical paper.” Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of the above, I find the Town must clarify whether the responsive records can be provided in the format that Ms. Herman has requested. The Town must clarify this matter. This office encourages both parties to communicate further to enable the Town to provide the requested records. The Town is advised that to the extent possible, it must provide responsive records on a rolling basis. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Town is ordered to provide Ms. Herman with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Rachel Herman