Nick DeMarco v. Middleborough, Town of - Building Department (SPR 20251485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2025 SPR25/1485 Robert Whalen Building Commissioner Middleborough Building Department 20 Center Street Middleborough, MA 02346 Dear Mr. Whalen: I have received the petition of Nick DeMarco appealing the response of the Middleborough Building Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2025, Mr. DeMarco requested, “all records documenting or referencing conversations or correspondence between the Middleborough Building Department and [an identified individual] or any representative of Middleboro Recycling/Spiegel Scrap Metal regarding their operations at … Bedford St….” The Department responded on May 19, 2025. Unsatisfied with the Department’s response, Mr. DeMarco appealed, and this case, SPR25/1485, 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. 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. 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

Robert Whalen SPR25/1485 Page 2 June 4, 2025 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 Department’s May 19th Response In its May 19, 2025 response, the Department states it “does not have any documents within the scope of your request.” Current Appeal In his appeal petition, Mr. DeMarco states, “I am providing this attached MassDEP email, dated December 29, 2021, which confirms that [an identified individual] explicitly stated to MassDEP that he had already spoken to the Middleborough Building Department about the installation of the 3TEK Bravo 6280 shredder. Email attached … This contradicts the [Department’s] position that no communication records exist or were ever made or received. If the Building Department failed to document this interaction, it raises questions about public recordkeeping and enforcement obligations….” In light of the clarification provided by Mr. DeMarco in his appeal petition, I find the Department must clarify whether it possesses records responsive to the 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). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. DeMarco with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Nick DeMarco