Darin Takemoto v. Belmont, Town of - Town Clerk (SPR 20252248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2025 SPR25/2248 Ellen O’Brien Cushman Town Clerk Town of Belmont 455 Concord Avenue Belmont, MA 02478 Dear Ms. O’Brien Cushman: I have received the petition of Darin Takemoto appealing the response of the Town of Belmont (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 24, 2025, Mr. Takemoto requested, “25% Design documents submitted by Nitsch Engineering, Inc. for the Belmont Community Path (MassDOT project 609204) between July 1, 2025 and July 23, 2025.” The Town responded on July 25, 2025. Unsatisfied with the response, Mr. Takemoto petitioned this office and this appeal, SPR25/2248, 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

Ellen O’Brien Cushman SPR25/2248 Page 2 August 11, 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 July 25th Response On July 25, 2025, the Town stated, “[t]he request you submitted cannot be provided for the following reasons. 1) The current design stage in progress is for 75% Design Phase[;] 2) This 75% Design Phase is currently in progress, but is anticipated to be completed and submitted by September 10, 2025. If the 75% Design is the information you are interested in receiving please submit a records request on or after Sept. 10th.” Current Appeal In his July 31, 2025 petition to this office, Mr. Takemoto stated, “[t]he town’s refusal revolves around their claim that the project is in the 75% design phase. This is not true since the 25% design plan has not been approved yet due to a faulty ‘bridge sketch plan’… The fact that these documents were submitted ahead of the planned September submission of the 75% design plan serve as proof that these documents are in fact 25% design documents that should have been delivered as part of the request.” Based on Mr. Takemoto’s petition and the Town’s response, it is unclear whether the Town possesses responsive records. 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). Consequently, the Town must clarify whether it possesses the requested records. Conclusion Accordingly, the Town is ordered to provide Mr. Takemoto 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. Takemoto 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: Darin Takemoto