Erik J. Heels v. Acton, Town of - Town Clerk (SPR 20252053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2025 SPR25/2053 Leo Mercado Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Erik 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 30, 2025, Mr. Heels requested: [1] [C]opies of all documents/papers required for a candidate to ‘pull papers’ to run for Select Board, including, but not limited to, nomination papers, for the 2024, 2025, and 2026 election years….[;] [2] [T]he URL of the Acton Town website page that provides information about how prospective candidates can run for office. Previous Appeals This request was the subject of previous appeals. See SPR25/1772 Determination of the Supervisor of Records (July 2, 2025). In my July 2nd determination, I ordered the Town to clarify whether there are additional responsive records. The Town responded on July 15, 2025. Unsatisfied with the Town’s response, Mr. Heels petitioned this office and this appeal, SPR25/2053, was opened as a result. Subsequently, the Town provided two supplemental responses on July 16 and July 17, 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 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 SPR25/2053 Page 2 July 25, 2025 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. 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 July 15th, July 16th, and July 17th responses In its July 15, 2025 response, the Town states, “[t]he copies of the requested documents are not available in a digital format but are available at the Town Clerk’s office. The Town of Acton’s website does not have a page dedicated to the information requested.” In its July 16, 2025 response, the Town states, “[w]e are sending copies of the requested documents, however, they need to be signed and picked up in person at the Town Clerk’s office to be official. This is the customary practice for the Town for someone to receive nomination papers.” In its July 17, 2025 response, the Town states, “in your initial request … you stated ‘I intend to run for Acton Select Board in 2026.’ Therefore, the Town has been treating your request for nomination papers with that in mind. Candidates must appear in person and sign the form in the presence of the Town Clerk, which is why they have previously stated the documents were not available in a digital format. The nomination papers remain the same each year unless they are updated by the Commonwealth of Massachusetts, which has not been the case for the requested years, so the attached documents are the nomination papers for 2024, 2025, and 2026.” Current Appeal In his appeal to this office, Mr. Heels states, “the reply from the Acton Town Clerk’s letter (dated 2025-07-15) is, at best, disingenuous…. Unless the requested documents are handwritten by some Acton employee, then they exist somewhere in some digital format on some computer owned by Acton. Even if they are not in a ‘digital format,’ I don't feel that I should be compelled to ‘come and get them’ as part of this request.” No Duty to Create Records Please note 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

Leo Mercado SPR25/2053 Page 3 July 25, 2025 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 a telephone call between a staff attorney of the Public Records Division and the Town on July 24, 2025, the Town confirmed that it has provided all records responsive to the request, and that there are no additional responsive records to Mr. Heels’ request. Conclusion Where the Town confirmed that it does not possess additional records responsive to Mr. Heels’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Heels 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: Erik Heels