Erik J. Heels v. Acton, Town of - Town Clerk (SPR 20251536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2025 SPR25/1536 Leo Mercado Records Access Officer Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Erik J. Heels appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2025, Mr. Heels requested, “...a copy of the video and video transcript of the 2025-04-30 Acton Select Board meeting featuring the Moderator’s preview of the 2025-05-05 Town Meeting.” The Town responded on May 22, 2025. Unsatisfied with the response, Mr. Heels petitioned this office and this appeal, SPR25/1536, 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. 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

Leo Mercado SPR25/1536 Page 2 June 9, 2025 Current appeal In his appeal, Mr. Heels asserts, “... I asked for two records: a copy of the video and a copy of the video transcript of the 2025-04-30 Acton Select Board meeting. My understanding is that Zoom retains recordings of Zoom meetings for a period of time after the meeting. My understanding is that transcripts are routinely created for such Zooms ... I believe that the Town of Acton’s reply to my FOIA request was incomplete and possibly inaccurate, which is why I am appealing.” The Town’s May 22nd Response In its May 22, 2025 response, the Town stated, “[t]he record you asked for does not exist.” Based on Mr. Heels’ claim, in conjunction with the Town’s response, it is unclear if the Town possesses any records responsive to his 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). However, 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). Consequently, the Town must clarify whether any records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Heels 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. Heels 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: Erik J. Heels