Eric Richards v. Auburn, Town of - Town Clerk (SPR 20243296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2024 SPR24/3296 Ginger Buteau Town Clerk Town of Auburn 104 Central Street Auburn, MA 01501 Dear Ms. Buteau: I have received the petition of Eric Richards appealing the response of the Town of Auburn (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2024, Mr. Richards requested “records pertaining to [named individuals], businesses, and addresses for the period January 1, 2018, to the present.” On October 24, 2024, Mr. Richards narrowed his request to nineteen categories of records. On November 19, 2024, Mr. Richards modified his request to the following: [1.] PDF Business Certificate file for ALL HVAC LLC [2.] Any disclosable public records related to [two named individuals]… A comprehensive explanation of the search performed across departments and any records located. [3.] Any disclosable public records related to ALL HVAC LLC, Phoenix Challenge Coins LLC, or any other business entities associated with [a named individual] (including DBAs or sole proprietorships)… Confirm that a comprehensive search was conducted across all relevant departments, There is at least 1 other known business entity documented by the town for which records were not disclosed. [4.] Any disclosable public records for addresses: … Ravine Drive, … Alpine Trail, … Washington Street, Auburn, MA 01501 (related to the listed businesses and individuals)… A full response or detailed explanation of searches across all departments. [5.] Any disclosable public records of correspondence (emails, memos, letters, phone calls, meeting notes, Zoom calls, investigations, etc.) involving the listed businesses, individuals, and addresses… Coordination of full fee waiver and electronic delivery method clarification. 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

Ginger Buteau SPR24/3296 Page 2 December 19, 2024 [6.] Any disclosable public records of evidence collected by the Town of Auburn (photos, videos, audio, statements, etc.) related to the listed businesses, individuals, and addresses… Coordination with relevant departments to locate and disclose all evidence records. [7.] Any disclosable public records of complaints and investigations regarding home occupation and home occupation business and Section 3.9.1.2 of the Zoning Bylaws… Request: A thorough and complete disclosure of all records. [8.] Any disclosable public records of enforcement citations, including identification, investigation, violations, and appeals starting from 2018 to today under Section 3.9.1.2 of the Zoning Bylaws… Request: A comprehensive response addressing these records, independent of database existence. [9.] Any disclosable public records of revenue generated from permits, appeals, fines, and enforcement related to Section 3.9.1.2 of the Zoning Bylaws… Request: All data related to revenue records, irrespective of data storage method. [10.] Any disclosable public records related to appeals of Section 3.9.1.2 of the Zoning Bylaws starting from 2018 to today (including pending appeals) – Not received. The Town stated that no zoning or planning permits were found but failed to adequately address any appeals. Request: Confirmation of thorough searches across relevant departments for appeal records. [11.] Any disclosable public records of home occupation and home occupation business permits for the listed individuals, businesses, and addresses… Request: A complete disclosure of all permits. [12.] Any disclosable public records of criteria used by the Town of Auburn to define home occupation and home occupation business… Request: Documentation of where the bylaw text came from, including any drafts, discussions, or official actions taken to define these terms. [13.] Any disclosable public records of legal citations used to define home occupations and home occupation businesses… Request: Documentation regarding the adoption, definition, and criteria used for Home occupation, home occupation business identification, investigation, violations, enforcement, permits, appeals. [14.] Any disclosable public records of inspections, enforcement actions, identification, investigation, violations, and appeals under Section 3.9.1.2 of the Zoning Bylaws… Request: A full response from all relevant departments. [15.] Any disclosable public records of meeting minutes and agendas related to home occupation and home occupation business… Request: Completion of all missing minutes and agendas. [16.] All disclosable public records of correspondence related to the enforcement of Section 3.9.1.2 of the Zoning Bylaws… Request: A full response across all departments that may hold these records. [17.] All disclosable public records of policies and procedures related to identification, investigation, enforcement, violations, and appeals under Section

Ginger Buteau SPR24/3296 Page 3 December 19, 2024 3.9.1.2 of the Zoning Bylaws… Request: An affidavit confirming that no policies or procedures exist and explanation detailing why none are in place. [18.] All disclosable public records of directives or guidance from Massachusetts state agencies or government officials regarding zoning enforcement during COVID-19… Request: Documentation of any official or unofficial actions, policies, or enforcement pauses during this period. [19.] All disclosable public records of public communications related to the enforcement of Section 3.9.1.2 of the Zoning Bylaws… Request: Confirmation and explanation of the lack of any public communications around Town of Auburn enforcement changes during this time period. [20.] Discretionary Decision-Making by Zoning Officials or Town Employees involved in Decisions Related to Bylaw 3.9.1.2… Request: Provide records on discretionary decision-making involving Town employees and the listed addresses, parties, and businesses. [21.] Special Permits and Conditions Related to Home Occupation and Home Occupation… Request: Documentation of any special permits granted or denied, including criteria and definitions, conditions used. [22.] Total Costs for Home Occupation and Home Occupation Business Permits Under Bylaw Section 3.9.1.2… Request: Records of the total costs and itemized breakdown for a Home Occupation Special Permit and an applicant fulfilling it’s requirements. [23.] Town Investigations and Audits Related to Bylaw 3.9.1.2… Request: Records of any inspections, audits, proposed actions, or reviews. [24.] Studies, White Papers, and Reports on Zoning Enforcement Strategies… Request: Copies of studies, white papers, and reports commissioned by the Town as they relate to home occupation, and home occupation business, bylaw 3.9.1.2. Prior Appeals This request was the subject of prior appeals. See SPR24/2952 Determination of the Supervisor of Records (November 8, 2024); SPR24/3038 Determination of the Supervisor of Records (November 21, 2024); and SPR24/3193 Determination of the Supervisor of Records (December 5, 2024). In my December 5th determination, I found that Town had met its burden to explain how it had provided a reasonable fee estimate for the production of records responsive to this request. However, I additionally found that it was unclear if the Town possesses additional records responsive to the request. The Town responded on December 6, 2024. Unsatisfied with the Town’s response, Mr. Richards petitioned this office and this appeal, SPR24/3296, was opened as a result.

Ginger Buteau SPR24/3296 Page 4 December 19, 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. The Town’s December 6th Response In its December 6, 2024 response, the Town stated the following regarding each aspect of Mr. Richards’ request: [1.] This information was provided by the Town Clerk’s Office via email on 10/9/2024. [2.] This information was provided by DDIS via email on 11/01/2024. If you are looking for records from another department, please identify what other departments you are looking for information from so we can further assist you… The Town has conducted a thorough search of our records and any relevant documents have been provided. A request to create additional records exceeds the Town’s obligations under the public records law in regard to that search. [3.] The Town Clerk has nothing else for All HVAC LLC besides the Business Certificate (emailed on 10/9/2024), they also have no records of Phoenix Challenge Coins LLC doing business in Auburn, and there are no records of any other business entities associated with [a named individual] (including DBAs or sole proprietorships) operating in Auburn… Please identify what other business entity documented by the Town you are speaking of, so we can further assist you. [4.] This information was provided by DDIS via email on 11/01/2024. If you are looking for records from another department, please identify what other departments you are looking for information from so we can further assist you… The Town has conducted a thorough search of our records and any relevant documents have been provided. A request to create additional records exceeds the

Ginger Buteau SPR24/3296 Page 5 December 19, 2024 Town’s obligations under the public records law regard to that search. [5.] This information was provided by DDIS via email on 11/1/2024… A quote for the remainder of the requested emails was provided by IT on 10/10/2024, 11/7/2024 & 11/25/2024. [6.] DDIS sent you the records for this request via email on 11/1/2024… The relevant department that has those records is DDIS. [7.] This information was provided by DDIS via email on 11/1/2024 for the listed individuals, business, and addresses. This request has been modified from the request on 10/24/2024… Any other records of complaints and investigations regarding home occupations would be address specific, and can be requested individually. [8.] DDIS does not have a database that identifies this information. This request has been modified from the request on 10/24/2024. The answer remains the same… Any records of enforcement citations are kept address specific, and can be requested individually. If there is a specific address that you would like us to check for this request, please identify the address so we can further assist you. [9.] DDIS does not have a database that identifies this information… Any records of revenue generated for Section 3.9.1.2 are kept address specific, and can be requested individually. If there is a specific address that you would like us to check for this request, please identify the address so we can further assist you. [10.] The information that was originally searched for was discussed with the Town Clerk’s Office on 10/23/2024. Mr. Richards then said that he wanted it for all addresses in Town not just the 3 addresses he listed. The Town Clerk informed Mr. Richards that those records are kept by address and not by Bylaw Sections and there would be a fee for that search. Mr. Richards then asked to put that on hold on 10/24/2024… If there are any specific addresses that [Mr. Richard’s] want[s] us to look up, please let us know so we can further assist [him]. [11.] There are no Home Occupation and Home Occupation Business Permits for the listed individuals, businesses and addresses that you identified. [12.] This information was provided by DDIS via email on 11/1/2024 as the Zoning Bylaw. Here is the link to the full Zoning Bylaw… Section 3.9.1.2 is located on page 25… I have attached the Warrant, Minutes, Proposed Zoning Bylaw and Approved Zoning Bylaw from the Town Meeting that Section 3.9.1.2 was approved in 1987. [13.] This information was provided by DDIS via email on 11/1/2024 as the Zoning Bylaw. Here is the link to the full Zoning Bylaw… Section 3.9.1.2 is located on page 25… I have attached the Warrant, Minutes, Proposed Zoning Bylaw and Approved Zoning Bylaw from the Town Meeting that Section 3.9.1.2 was approved in 1987. [14.] According to your request on 10/24/2024 “Any disclosable public records of inspections and enforcement actions under Section 3.9.1.2 of Zoning Bylaws (including photos, evidence, and site visit details) regarding the listed individuals, businesses, and addresses.” The information was provided by DDIS via email on 11/1/2024 for the listed individuals, businesses and addresses. This request has

Ginger Buteau SPR24/3296 Page 6 December 19, 2024 been modified from the request on 10/24/2024… If you are looking for records from another department, please identify what other departments you are looking for information from so we can further assist you. [15.] Zoning Board of Appeal minutes and agendas were given on 10/31/2024, 11/8/2024, 11/18/2024, 11/22/2024 and 12/3/2024… Those are all the minutes and agendas that we have that pertain to this request. [16.] Any records of correspondence generated for Section 3.9.1.2 are kept address specific, and can be requested individually. If there is a specific address that you would like us to check for this request, please identify the address so we can further assist you… If you are looking for records from another department, please identify what other departments you are looking for information from so we can further assist you. [17.] There are no such policies or procedures exist. This request has been modified from the request on 10/24/2024. The answer remains the same… A request to create additional records exceeds the Town’s obligations under the public records law in regard to that search. [18.] Auburn followed the COVID-19 Requirements enacted by the State… This request has been modified from the request on 10/24/2024. The answer remains the same. [19.] There has been no changes to this Bylaw since it was approved in 1987… We have attached the Town Meeting Warrant for Zoning Bylaw 3.9.1.2 from 1987 when the Bylaw was approved. [20.] This is a new request. We have no such record. A request to create additional records exceeds the Town’s obligations under the public records law in regard to that search. [21.] The information that was originally searched was discussed with the Town Clerk’s Office on 10/23/2024. Mr. Richards then said that he wanted it for all addresses in Town not just the 3 addresses he listed. The Town Clerk informed Mr. Richards that those records are kept by address and not by the Bylaw Sections and there would be a fee for that search. Mr. Richards then asked to put that on hold on 10/24/2024... If there are any specific addresses that you want us to look up, please let us know so we can further assist you. [22.] We have attached a Zoning Bylaw Application and checklist that includes the fee schedule… If there are any specific addresses that you want us to look up, please let us know so we can further assist you. [23.] This information was provided by DDIS via email on 11/1/2024 for the listed parties and addresses. As written in original request on 9/25/2024. [24.] No such records exist… A request to create additional records exceeds the Town’s obligations under the public records law in regard to that search. Current appeal In his appeal, Mr. Richards stated, “the Town continues to produce incomplete responses, evade critical portions of my requests, and shift undue burdens onto me as the requester… The

Ginger Buteau SPR24/3296 Page 7 December 19, 2024 Town repeatedly frames my attempts to obtain existing records as a demand to ‘create additional records,’ an assertion that misrepresents my request. I am seeking disclosure of existing records; it is the Town’s obligation to locate and produce them, not mine to re-draft the request in increasingly fragmented forms. This tactic suggests the Town is either unwilling or refusing to conduct a thorough search… The Town does not cite any statutory exemptions for withholding records, nor does it provide affidavits or any credible account of the search methods employed… Instead, the Town uses vague responses and conditional requests that I identify addresses or departments, bypassing their duty to confirm the existence or absence of certain categories of records.” No Duty to Create Records Please be advised, under the Public Records Law the Town is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based upon a conversation between a Public Records Division staff member and a Town representative, the Town confirmed that it has no additional records responsive to the request. Conclusion Where the Town does not possess any additional records responsive to the November 19th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Richards is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Eric Richards