Patrick Mehr v. Lexington, Town of (SPR 20252362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2025 SPR25/2362 Mary De Alderete Town Clerk Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Dear Ms. De Alderete: I have received the petition of Patrick Mehr appealing the response of the Town of Lexington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 11, 2025, Mr. Mehr requested “… all the detailed calculations yielding each of the $ figures on slide 7 of 28 of [a slideshow presentation], e.g. how is each component of the ineligible $295.2 million arrived at.” The Town responded on August 12, 2025. Unsatisfied with the Town’s response, Mr. Mehr petitioned this office and this appeal, SPR25/2362, 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. 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. 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

Mary De Alderete SPR25/2362 Page 2 August 15, 2025 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 August 12th Response In its August 12, 2025 response, the Town stated, “… calculations created by Dore and Whittier are not held by the Town and therefore exempt from disclosure as per the Public Records Law. The Town is not required to create a record that they are not in custody of.” Current Appeal In his August 12, 2025 petition to this office, Mr. Mehr contended that the requested records “… were produced by the Town’s consultant, SMMA, and paid for by the Town. The Town does not have those Calculations in its own files but SMMA has those Calculations in its files[.]” Agency Relationship 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, 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. Sch. Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In this case, where it appears that Dore and Whittier and PMMA have acted as agents on behalf of the Town, it is unclear whether the records for the Town’s agents were searched. As such, I find that the Town must provide additional information detailing its search in order to determine if the Town has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request.

Mary De Alderete SPR25/2362 Page 3 August 15, 2025 Conclusion Accordingly, the Town is ordered to provide Mr. Mehr with a response to the request, 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 pre@sec.state.ma.us. Mr. Mehr may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Patrick Mehr