Michael A. Fenton v. Baker Hill Road District (SPR 20252033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2025 SPR25/2033 Mark W. Siegars, Esq. Records Access Officer Baker Hill Road District P. O. Box 279 44 North Main Lanesborough, MA 01237 Dear Attorney Siegars: I have received the petition of Attorney Michael A. Fenton, of Shatz, Schwartz and Fentin, appealing the response of the Baker Hill Road District (District/BHRD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 10, 2025, Attorney Fenton requested “all documentation related to the vote and meeting at which the vote to reappoint [a named individual] to the BHRD Prudential Committee was held, including but not limited to meeting minutes, agendas, records of votes, and the names of the property owners who voted.” The District responded on July 9, 2025. Unsatisfied with the District’s response, Attorney Fenton petitioned this office, and this appeal, SPR25/2033, was opened as a result. Subsequent to the opening of this appeal, in a letter to Attorney Fenton and this office on July 24, 2025, the District provided a supplemental response. 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 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

Mark W. Siegars, Esq. SPR25/2033 Page 2 July 28, 2025 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 District’s July 9th and July 24th Responses In its July 9, 2025 response, the District states that “there are no District documents responsive to your request, and any documents were provided in a response to a document request you made in Baker Hill Road District v. JMJ, #2476CV00200 a case for non-payment of taxes.” The District reiterates that “there are no documents responsive to your request.” In his appeal petition, Attorney Fenton argues the following: The BHRD’s assertion that there are no responsive documents to our request is a clear admission of its violation of various statutory mandates. First, Section 3 of Chapter 41 of the Acts of 1989 provides that “[m]eetings of the prudential committee shall be held at least semiannually and shall be governed by chapter thirty-nine of the General Laws insofar as apt except as otherwise provided by this act.” M.G.L. c. 39 §§ 3 and 15 expressly provide for votes to be recorded. Furthermore, as a municipal entity subject to the Open Meeting Law,3 M.G.L. c. 30A, § 22 requires the BHRD to “create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.” Records in Existence; Possession, Custody, or Control Please be 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). Further, 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). In telephone conversation with this office on July 23, 2025, an attorney for the District confirmed that the District does not possess records responsive to the request. In its July 24, 2025 response, the District further explains the following:

Mark W. Siegars, Esq. SPR25/2033 Page 3 July 28, 2025 I am supplementing my response to your records requests with whom I believe is the custodial recordkeeper of those documents you seek: Town of Lanesborough for the records of its two appointments to the Prudential Committee of the Baker Hill Road District; The property owners within the District for each of its appointment of a single town resident to the Prudential Committee of the Baker Hill Road District; Both Chapter 41 of the Laws of 1989 and Chapter 47 of the Laws of 2018, delineating the boundaries of both the Baker Jill Road District and the original layout of the public way, and the relaied out punlic [sic] way now called the US7/SR8 Connector Road, and the authority of the Baker Hill Road District are records maintained by the General Court and the Commonwealth of Massachusetts, and Town of Lanesborough for records of the delineation of the Baker Hill Road District, the so-called Connector Road, and property owners falling within the Baker Hill Road District. In this case, where the District confirmed that it does not possess records responsive to Attorney Fenton’s request, and has identified the municipality that may be in possession of the records he seeks, I find that the District has met its burden in responding to this request. See G. L. c. 66, § 10(b)(iii) (the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Fenton is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael A. Fenton