Geoff Beach v. Acton, Town of - Town Clerk (SPR 20250434)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0434 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. 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 SPR25/0434 Page 2 February 28, 2025 Prior Appeal and Reconsideration The requested records were the subject of a prior appeal and subsequent reconsideration. See SPR24/3127 Determination of the Supervisor of Records (December 4, 2024 and January 2, 2025). In my January 2nd determination, it was my understanding that the Town intended on providing a further response to Mr. Beach. The Town responded on February 3, 2025. Unsatisfied with the response, Mr. Beach petitioned this office and this appeal, SPR25/0434, 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 custodian must provide the responsive records. Current appeal In his appeal, Mr. Beach asserts, “I sought the application for said amended plan, the complete amended plan set (all sheets), the drainage calculations integral to the plan, and the public hearing record. Only the single-sheet Record Plan is on file at the Registry. Per the attached Subdivision Rules and Regulations (Sec. 7.1.1 and 7.1.4), the entire amended plan should be on file with the Town as a PDF. In your November 18, 2024 response, you noted these records were in the Town’s possession but obtainable only through discovery. Yet the six records recently provided do not match those criteria—four were publicly posted, and two did not exist on November 18, 2024. This implies certain existing public records were withheld from public availability at that time.” The Town’s February 3rd response In its February 3, 2025 response, the Town provided a response in accordance with each Item of the request as follows:

Leo Mercado SPR25/0434 Page 3 February 28, 2025 1. The completed Application for Previously provided to Requestor and available online Approval of Definitive Plan. since 6/2/2020. Also attached. https://doc.actonma.gov/dsweb/Get/Document- 72731/Application.pdf 2. A completed Designer’s Certificate. Same as above. 3. A record of notice of Public Hearing. Same as above. https://doc.actonma.gov/dsweb/Get/Document- 72950/Legal%20Notice%20- %2046%20High%20Street.pdf 4. A certification of no appeals from the This is included at the bottom of the decision and is Town Clerk. recorded at the Middlesex South Registry of Deeds in Book 75638, Page 75. 5. The entire approved definitive plan The certificate is attached. The plans are recorded at the of the subdivision as amended by the Middlesex South Registry of Deeds. The original plan Board in its decision of approval, as is recorded in Book 02020, Page 648 and the amended referenced in Town of Acton. plan is recorded in Book 02024, Page 277. Subdivision Rules and Regulations Sec. 7.1.1. Based on Mr. Beach’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses any additional records responsive to his request. 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Beach with a response to the 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. Mr. Beach may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Leo Mercado SPR25/0434 Page 4 February 28, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach