Ken Smith v. Town of Tolland - Town Clerk (SPR 20253106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2025 SPR25/3106 Susan Voudren Town Clerk Tolland Town Hall 241 West Granville Road Tolland, MA 01034 Dear Ms. Voudren: I have received the petition of Ken Smith appealing the response of the Town of Tolland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2025, Mr. Smith requested, “[samples of the following] scanned in color with both sides scanned if applicable[:]” [1] Building Certificate of Inspection: issued to restaurants, schools and places of assembly[;] [2] Building Permit Job Card[;] [3] Building Certificate of Occupancy[.] The Town responded on October 15, 2025, advising that it “does not have any businesses such as restaurants, schools, or places of assembly” and further noting that the Town does not “use [‘]Building Permit Job Cards.[’] . . . [B]uilding permits are processed manually using handwritten paper forms.” Following this correspondence, in an email to the Town also on October 15, 2025, Mr. Smith clarified his request and stated, “I am sure homes and buildings in town have been issued building permits, certificates of inspection and certificates of occupancy for associated construction work. . . . As such, could you please send me samples of these handwritten documents?” Claiming to not yet have received responsive records, Mr. Smith petitioned this office and this appeal, SPR25/3106, 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 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

Susan Voudren SPR25/3106 Page 2 November 4, 2025 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. 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. Current Appeal In his October 23, 2025 appeal petition, Mr. Smith indicates that he has yet to receive a response from the Town to his clarified October 15, 2025 request and asks that this office, “compel the Town of Tolland to respond to [his] request. . . .” He further states that the Town “should be able to respond and provide these requested samples” and contends, “[t]hey have provided no clear indication that they will respond to this request.” Timeliness of 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 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 clarified his request on October 15, 2025, it is unclear why the Town has not provided the 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Consequently, the Town must provide an estimated date as to when

Susan Voudren SPR25/3106 Page 3 November 4, 2025 it intends to complete the search and provide the responsive records. 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 his clarified 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. Smith may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ken Smith