Ken Smith v. Hancock Town Clerk (SPR 20252229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2025 SPR25/2229 Linda Burdick Town Clerk Town of Hancock 3650 Hancock Road Hancock, MA 01237 Dear Ms. Burdick: I have received the petition of Ken Smith appealing the response of the Town of Hancock (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2025, Mr. Smith requested, “[o]ne recently issued 2024 or 2025 sample of each of the [following]: Restaurant Liquor License[;] Common Victualler[;] Entertainment[;] Building Certificate of Inspection[;] Health Food Service Permit[;] Health Tobacco Permit[;] Building Permit Job Card[;] Building Certificate of Occupancy[.]” The Town responded on May 22, 2025, May 24, 2025, and July 8, 2025. Unsatisfied with the responses, Mr. Smith petitioned this office and this appeal, SPR25/2229, 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. 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

Linda Burdick SPR25/2229 Page 2 August 4, 2025 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 22nd, May 24th, and July 8th Responses On May 22, 2025, the Town stated, “[h]i Jan I think you might be able to provide some of this. I am not sure about some of these.” On May 24, 2025, the Town stated, “I forwarded this to the Town Secretary who takes care of these permits and would have contacts to call…I do not have anything to do with licenses…” On July 8, 2025, the Town stated, “[as] clerk I have none of the forms you asked for. I have given this to the Town Secretary who handles bldg permits, etc. I will be in my office Thursday only for 4 hours and will check with her on the progress…” Current Appeal In his July 30, 2025 petition to this office, Mr. Smith stated, “I would like to appeal the non-response of the Select Board/Town Secretary in the Town of Hancock. The town secretary has stated she is awaiting counsel to opine if these are public records…” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Smith made his request on May 22, 2025, and the Town has not provided the responsive records, I find the Town has not met its burden in responding to Mr. Smith’s request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it intends to complete its review and provide the responsive records.

Linda Burdick SPR25/2229 Page 3 August 4, 2025 See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Smith 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: Ken Smith Jan Lillie, Town Secretary