Josh Ames v. Westwood, Town of - Clerk's Office (SPR 20250906)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2025 SPR25/0906 Dottie Powers Town Clerk Town of Westwood 580 High Street Westwood, MA 02090 Dear Ms. Powers: I have received the petition of Josh Ames, appealing the response of the Town of Westwood (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2025, Mr. Ames requested: [1] Preliminary and final draft versions of the comprehensive facilities studies for both the school department and municipal government performed by Dore & Whittier from April 2024 through March 2025, provided to any Town of Westwood employees or agents including, but not limited to: [five identified individuals]. [2] The most recent draft version(s) of Capital Improvement Plans (CIPs) from 2025 pertaining to both the Westwood School Department and municipal infrastructure, also if provided to the above individuals. The Town provided responses on March 25 and April 1, 2025. Unsatisfied with the Town’s responses, Mr. Ames petitioned this office and this appeal, SPR25/0906, 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

Dottie Powers SPR25/0906 Page 2 April 14, 2025 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 March 25th and April 1st Responses In its March 25, 2025 response, the Town informed Mr. Ames that there were no records responsive to his request. In its April 1, 2025 response, the Town confirmed that it “… [had] not received a ‘draft’ or a final facility report for municipal facilities as of this time.” Current Appeal In his April 1, 2025 petition to this office, Mr. Ames objected to the Town’s response as implausible. Mr. Ames claimed that the Town has issued a statement promising to share the results of a facilities study on April 10, 2025. Agency Relationship Please be advised that 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). Further, in accordance with the Public Records Law, 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying.

Dottie Powers SPR25/0906 Page 3 April 14, 2025 In this case, where it appears that an outside architectural and project management firm may have acted as an agent on behalf of the Town, it is unclear whether the records for the Town’s agents were searched. As such, I find that the Town must provide additional information detailing its search in order to determine if the Town has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the Town is ordered to provide Mr. Ames 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. Ames may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Josh Ames