John J. Clifford v. West Boylston, Town of - Town Clerk (SPR 20251389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2025 SPR25/1389 Daymian R. Bartek Town Clerk Town of West Boylston 140 Worcester Street West Boylston, MA 01583 Dear Ms. Bartek: I have received the petition of John J. Clifford, Esq., of Clifford and Kenny, LLP, appealing the response of the Town of West Boylston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2025, an attorney for Clifford and Kenny, LLP requested: [1] Any and all communications between and amongst individual members of the Select Board since January 28, 2025, to present, including, but not limited to: emails, texts, and written correspondence. Please be advised that this request is intended to include communications via personal email addresses and phones; and [2] Any and all communications between any member of the Select Board and [an identified officer] since January 22, 2025, to present, including, but not limited to: emails, texts, and written correspondence. Please be advised this request is intended to include communications via personal email addresses and phones. On March 11, 2025, the Town sent a fee estimate for the request. On or about March 18, 2025, Attorney Clifford submitted a check for the full amount, which the Town received on March 31, 2025. Subsequently, Attorney Clifford inquired about the status of his request on April 23, 2025. The Town responded on April 24, 2025 and April 25, 2025. Unsatisfied with the Town’s responses, Attorney Clifford petitioned this office and this appeal, SPR25/1389, 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 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

Daymian R. Bartek SPR25/1389 Page 2 May 30, 2025 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 April 24th and April 25th Responses In its April 24, 2025 response, a Town official stated, “I apologize for the delay. I am a one-person office right now due to a staffing shortage. I have received all the responses from the requested parties, and have started getting rid of duplicates. I should be done by early next week. I will then send it off to Town Counsel. As soon as they have done their part, I will get it right over to you.” After Attorney Clifford expressed his opposition to the Town’s delay, the Town stated in its April 25, 2025 response: [T]he Massachusetts Public Records Law provides specific guidance for delays when the agency or municipality is unable to produce the records within 10 business days “because the magnitude or difficulty of the request or if multiple requests from the same requestor unduly burdens the other responsibilities of the agency or municipality.” The law further states that the agency or municipality must provide a written response to the requestor within 10 business days of receiving the request, which we have done... At this time, we do not know whether Town Counsel will redact or withhold any records... We clearly stated that the number of records are beyond that of a typical records request and that the keeper of the record, the Town Clerk, is operating with only one staff person, herself, and is working through the documents while performing her regular duties… We have not asked for a modification to the scope of your request and we are working with Counsel to complete your request. Current Appeal In his appeal petition, Attorney Clifford states, “[t]he Town provided a good faith estimate of $125 on March 11, 2025 and I submitted a check for that amount on or about March

Daymian R. Bartek SPR25/1389 Page 3 May 30, 2025 18, 2025. No responsive records have been produced.” 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 the request was submitted on March 5, 2025 and the Town received Attorney Clifford’s fee payment on March 31, 2025, and the Town has not provided responsive records, nor cited an exemption for withholding records, I find the Town has not met its burden in responding to the requests in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, 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 Attorney Clifford 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. Attorney Clifford 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 J. Clifford, Esq.