John M. Flick v. Phillipston, Town of (SPR 20251061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2025 SPR25/1061 Peter Morin Interim Chief Administrative Officer Town of Phillipston 50 The Common Phillipston, MA 01331 Dear Mr. Morin: I have received the petition of John M. Flick, Esq., of Flick Law Group, P.C., appealing the response of the Town of Phillipston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2025, Attorney Flick requested “…all records evidencing the adoption of the subdivision control law,” including but not limited to: [1] Records related to the adoption of MGL. C 40 L et al.; [2] The vote of the town meeting under which the provisions of the subdivision control law were accepted; and [3] All records evidencing that the planning board has notified the register of deeds and the recorder of the land court that the town has accepted the provisions of the subdivision control law and has furnished the said register of deeds and recorder of the land court with a copy of the vote of the Town Meeting under which the provisions of the subdivision control law were accepted. The Town responded on April 9, 2025. Unsatisfied with the Town’s response, Attorney Flick petitioned this office and this appeal, SPR25/1061, was opened as a result. While this appeal was pending, the Town provided a supplemental response on April 17, 2025. 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

Peter Morin SPR25/1061 Page 2 April 29, 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. 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 April 9th and April 17th Responses In its April 9, 2025 response, the Town stated, “[w]e are in receipt of your public records request… Due to limited staff time, would you be willing to narrow your request?” In its April 17, 2025 supplemental response, subsequent to Attorney Flick denying to narrow his request, the Town stated, “I believe this appeal is premature… The requestor is aware that the Town of Phillipston has very limited staff and refused to narrow the scope of his public records request.” Current Appeal In his appeal petition, Attorney Flick states, “[a]s of the date of this appeal, the Town has failed to provide a response in compliance with M.G.L. c. 66 and 950 CMR 32.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Flick’s request was submitted on March 28, 2025, and the Town has not

Peter Morin SPR25/1061 Page 3 April 29, 2025 provided responsive records, nor cited an exemption for withholding records, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. The requestor may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John M. Flick, Esq.