William Wilson v. Pelham, Town of (SPR 20251381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2025 SPR25/1381 Melissa A. Hibbard Town Clerk Records Access Officer Town of Pelham 351 Amherst Road Pelham, MA 01002 Dear Ms. Hibbard: I have received the petition of William Wilson appealing the response of the Town of Pelham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 31, 2024, Mr. Wilson requested the following: [1.] The complete list of residents and violation or offence supporting documentation, identifying as of July 31, 2024, all properties located in the Town of Pelham, identified by Boards, Committees, civilian complaints and/or town employees, receiving or issuing inspections, letters, offense or violation reports generated, and/or documentation used for verification of reports by the Pelham Zoning Enforcement Officer… [2.] Copies of electronic correspondence, letters, interagency emails, registered mailing documentation and tracking numbers showing status receipt, civilian or Town of Pelham employees or officers, aerial, ground pictures or video dated when taken, to or for use of, verification of property complaints by [a named individual], for violations and/or offences pertaining to the property address of [a specified address]… from 2019 to present… [3.] The list of roll called attendees and identification of Pelham government officials and positions represented, all Board or Committee members, including non-board or committee member’s acting as recorders or other functions that attended, past or present on the date of 4 December 2019 meeting, referencing Buffam Brook Farm and Special Permit approved and issued for the unregistered vehicles at [a specified address]; and, 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

Melissa A. Hibbard SPR25/1381 Page 2 May 29, 2025 [4.] Copies of electronic correspondence, letters, interagency emails written and/or mailed to me by USPS with the registered mailing documentation and tracking numbers showing delivery status, scheduling of, or coordinating for, or notification to reinspect, sent to the property owners by Town of Pelham pertaining to the property address of . . ., as identified in meeting notes per special permit granted for unregistered vehicles granted 4 December 2019, from 2019 to present… Previous Appeal This request was the subject of a previous appeal. See SPR25/0285 Determination of the Supervisor of Records (February 7, 2025). In my February 7th determination, I found it unclear why the Town had not provided the responsive records given that Mr. Wilson had paid the fee. The Town responded on February 14, 2025, providing numerous responsive records. Unsatisfied with the Town’s response, Mr. Wilson petitioned this office, and this appeal, SPR25/1381, 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. Fee Waivers In his appeal petition, Mr. Wilson states: I ask a determination in this appeal the matter as to whether I should have been monetarily charged to receive these FOIAs and if, I should be reimbursed for the fee of $373.64 due to the fact the FOIAs being intentionally withheld from me for [a] … trial and with no excuse or documentation as to why they were not

Melissa A. Hibbard SPR25/1381 Page 3 May 29, 2025 provided for such a long duration of time… Please be advised that G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Additionally, please note that, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In this case, where it appears Mr. Wilson has paid the fees, and the Town has provided responsive records, I am unable to assist Mr. Wilson in regard to this aspect of his appeal petition. The Town’s February 14th Response In its February 14, 2025 response, the Town provided additional records responsive to Mr. Wilson’s request and stated: [P]ursuant to your July 31, 2024 public records request to the Town of Pelham, enclosed please find a revised document production. As directed by [an identified individual], you were to send us a list of documents that you believed were missing from the prior production. To date, we have not received a list of documents from you. As such, the Town considers this matter closed. Current Appeal In his appeal petition, Mr. Wilson states: After a review, I have reason to believe[] I have not received all requested FOIA information as written and requested in (4) FOIAs… Attached is a letter sent to me, not by the Records Custodian for the town, but by Town Counsel for the Town of Pelham, by [an] attorney … sending a ‘Revised Packet’ of information whereas, not identifying they are in fact, my (4) FOIA requests complete, but just a ‘Revised Packet’ of the court ordered ‘Case File’…

Melissa A. Hibbard SPR25/1381 Page 4 May 29, 2025 Supplied in the Town of Pelham’s ‘Revised Packet’ KP Law provided a list of personnel, no meeting title, not dated, whereas I was invited to a meeting whereas the town, requested me to appear to answer questions about our farm operation… We challenge that roster’s accuracy of personnel in attendance… I require the missing USPS … registered mail and tracking information allegedly, sent to us. Additionally, I request any other documentation, texts, emails, or any written communication identifying an issue to me at my farm after 4 Dec 2019, special meeting and unanimous Select Board vote to grant a special permit and the receipt of, Summons and Order of Notice, served by the Sheriff’s department for violations at Buffam Brook Farm… Copies of the original emails and texts, ‘the Identification of who took and sent what’ jpg photos in the emails or text messages to each other identifying alleged violations at Buffam Brook Farm … between [five identified individuals] or any other town representative with any electronic device showing specifically who did what including [an identified individual’s] email and / or text updates to town representatives…. The Town is 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or 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). However, 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). Based on the information provided in Mr. Wilson’s appeal petition, it is unclear whether the Town possesses additional responsive records. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Wilson 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. Mr. Wilson may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Melissa A. Hibbard SPR25/1381 Page 5 May 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: William Wilson