Sarah Nichols v. Wellfleet, Town of - Town Clerk (SPR 20252868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 15, 2025 SPR25/2868 Jennifer M. Congel Town Clerk Town of Wellfleet 300 Main Street Wellfleet, MA 02667 Dear Ms. Congel: I have received the petition of Sarah Nichols appealing the response of the Town of Wellfleet (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 4, 2025, Ms. Nichols requested “records pertaining to any category of beach sticker or taxpayer shellfish permits sold to properties paying less than $1000 in property tax in 2025. I would like to know under what properties these stickers were purchased.” The Town responded on September 12, September 15, and September 23, 2025. Unsatisfied with the Town’s responses, Ms. Nichols petitioned this office, and this appeal, SPR25/2868, 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

Jennifer Congel SPR25/2868 Page 2 October 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 City’s September 12th, September 15th and September 23rd Responses In its September 12, 15, and 23, 2025 responses, the Town provides numerous responsive spreadsheets. In its September 12th response, the Town explains the following: There is a spreadsheet for both beach stickers and shellfish for the 2025 season, as well a report from the Assessor for properties paying under a $1,000 in taxes. You will need to use the Assessors list of names and search the two spreadsheet. You may already know this but if you type in the command Ctrl and then F anywhere on the spreadsheet you will get a popup that you can enter search criteria. In its September 15th response, the Town further explains the following: It is not really 12,000 datapoints, because what you would do is search for the 244 residences (from the Assessors report) within the beach/shellfish sticker spreadsheet using the search command. I believe for your first request that work had already been done by an employee for their own records (and prior to your request) and not something that is done every year. I have been told that there are limitations to the software used to track stickers. It uses the Assessors database to verify that someone is a resident, but it cannot differentiate by how much someone pays in taxes. . . . This spreadsheet is broken down with the categories of the different stickers that are listed in the regulations. In its September 23rd response, the Town additionally states the following: Our Principal Clerk can process Residential shellfish permits outside of the summer season. I have attached an expanded spreadsheet; however, I was able to confirm with the Beach director that the 2025 list will not have any permits sold to those properties that pay under $1000 because those properties are already blocked in the system and cannot purchase a sticker. Current Appeal In her appeal petition, Ms. Nichols argues the following: On 9/12/25 I received the response ... with four documents attached. The first attachment being the standard public records response letter. ... The second

Jennifer Congel SPR25/2868 Page 3 October 15, 2025 attachment being a document listing the name and address of the 244 properties in the town of Wellfleet that pay under $1000 in property tax. The third attachment being an excel document containing the name and address of the supposedly complete list 496 taxpayer shellfishing permits that were sold. The fourth attachment being an excel document that contained the name and address for 5356 resident beach stickers and residential beach/transfer stickers that were sold. There are eight different categories of beach sticker sold in the town of Wellfleet. Those being resident beach, resident beach/transfer station, visitor three day, visitor one week, visitor two weeks, visitor seasonal, four to 6 month seasonal, and labor day. The excel document for beach stickers was missing info for six categories of beach sticker sales. Thus I responded on 9/12 pointing out the missing info. . . . On 9/15 I received the email ... with an excel document attached pertaining to beach sticker sales. This new excel document contained info for 11,827 sticker sales but did not include the address under with any of those sales were made. It also did not contain info for resident beach/ transfer station sticker sales. . . . In order to fulfill my request, the town needs to supply info for ALL categories of beach stickers sold as well as taxpayer shellfishing permits, under ALL address in town, along with the names under which purchases were made. In addition, the town needs to provide filtered data. I now want both as I have significant doubts about the accuracy/completeness of the info the town is providing or will provide. Records in Existence; No Duty to Create Records, Conduct Research 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, 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). Based on the Town’s responses and the information provided in Ms. Nichols’ appeal petition, it is unclear whether the Town possesses additional records responsive to Ms. Nichols’ request. If the Town does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Jennifer Congel SPR25/2868 Page 4 October 15, 2025 Conclusion Accordingly, the Town is ordered to provide Ms. Nichols 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. Ms. Nichols may further 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: Sarah Nichols