Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20251541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1541 Michael Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In three separate requests on April 14, 2025, April 22, 2025, and April 25, 2025, Mr. Kelleher requested the following: [1] [A] copy of the recording of the Brookfield Conservation Commission’s public meeting held on April 16, 2025[;] [2] [A] copy of the recording of the April 7, 2025 Board of Health meeting[;] [3] A copy of any and all emails or other communications sent by [an identified individual], in her capacity as a member or Chair of the Brookfield Board of Health, to the Massachusetts Cannabis Control Commission (CCC) between October 1 and October 10, 2023, regarding [a specified address], Sunfusions, cannabis zoning, licensing, or related permitting issues. Previous Appeals These requests were the subject of previous appeals. See SPR25/1504; SPR25/1505; and SPR25/1506 Determination of the Supervisor of Records (May 29, 2025). In the May 29th determination, I closed the appeal as a result of the Town’s May 28, 2025 response. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR25/1541, was opened as a result. 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

Michael Seery SPR25/1541 Page 2 June 2, 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). 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 May 28th Response In its May 28, 2025 response, the Town stated that it did not possess records responsive to Request #2. Current appeal In his appeal, Mr. Kelleher asserts, “[t]he town has not responded to my request at all for the ConCom recording and the Town has not responded at all for the email from the BOH chair to the CCC.” Based on Mr. Kelleher’s appeal and the Town’s response, it is unclear if the Town possesses any records responsive to Requests #1 and #3. 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 it possesses records responsive to Requests #1 and #3. Conclusion Accordingly, the Town is ordered to provide Mr. Kelleher with a response to the requests, 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

Michael Seery SPR25/1541 Page 3 June 2, 2025 pre@sec.state.ma.us. Mr. Kelleher 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: Christopher Kelleher