Tom Donahoe v. Lenox, Town of - Town Clerk (SPR 20252395)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2025 SPR25/2395 Kerry L. Sullivan Town Clerk Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Tom Donahoe appealing the response of the Town of Lenox (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2025, Mr. Donahoe requested, “[a]ll records related to removal of dirt, earth, materials, etc. from the site 227 Housatonic St./ O Stone Ledge Road. [The] nature of materials, method of transport away, where dumped, contractors or companies involved, logs or records relating to vehicles used, dates and times of actual removal, [and] any other related materials as to cost and disposal required.” Prior Appeal This request was the subject of a prior appeal. See SPR25/1669 Determination of the Supervisor of Records (June 23, 2025). In my June 23rd determination, I learned that the Town provided Mr. Donahoe with a response on May 19, 2025. Subsequently, on June 11, 2025 the Town provided Mr. Donahoe with a further response. Unsatisfied with the responses, Mr. Donahoe petitioned this office and this appeal, SPR25/2395, 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). 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

Kerry L. Sullivan SPR25/2395 Page 2 August 26, 2025 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. 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 May 19th and June 11th Responses In its May 19, 2025 response, the Town stated, “[t]his information is not technically public record. This is between [an identified individual] (GC) and the subcontractor(s). Since we didn’t haul out hazardous materials we’re not required to collect any sort of material manifests from the contractor. Regardless, I will reach out to Fontaine and see what they can provide us. At the very least we can provide information on who did the work, and roughly when.” In its June 11, 2025 response, the Town stated, “[w]hen Mr. Donahoe and I talked on May 16th we discussed the fact that I had no idea how to answer his question, but I certainly would send his request to the Project Manager, the custodian of any records regarding the Public Safety Facility which he did reply on the 19th…I did err when I failed to follow up with [an identified individual] to see if [an identified individual] has anything to offer but not we did close that loop as [an identified individual] had no additional details (below)[:] [s]ince the materials removed from the site were not classified as Hazardous Materials, it’s not the towns responsibility to track its whereabouts or final destination upon leaving the site.” Current Appeal In his August 13, 2025 appeal to this office, Mr. Donahoe stated, “I am appealing on substantive grounds with this appeal. 1) Failure to provide responsive records[;] 2) [w]ithholding documents without valid exemptions…” Based on Mr. Donahoe’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 responsive records. Conclusion Accordingly, the Town is ordered to provide Mr. Donahoe with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Kerry L. Sullivan SPR25/2395 Page 3 August 26, 2025 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. Donahoe 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: Tom Donahoe