Spencer McLeod v. Southborough, Town of (SPR 20253542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2025 SPR25/3542 Mark Purple Town Administrator Town of Southborough 17 Common Street Southborough, MA 01772 Dear Mr. Purple: I have received the petition of Spencer McLeod appealing the response of the Town of Southborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2025, Mr. McLeod requested: … all records in the possession, custody, or control of the Town of Southborough, including but not limited to the Building Department, related to the construction and permitting of [an identified individual’s] home at: … Flagg Road, Southborough, MA 01772[.] Please include: [1] Permitting and Inspections All permits, permit applications, inspection reports, approvals, notes, and attachments for:  Building Permit: BP-25-18  Mechanical Permits: M-25-16, M-25-45  Plumbing Permit: P-25-75  Gas Permit: G-25-117  Electrical Permits: E-25-152, E-25-123  Demolition Permit: D-25-1 Any additional permits or records associated with this structure. [2] Communications All communications (including emails, letters, memos, text message transcripts if retained, file notes, or internal comments) sent or received by any Building Department staff regarding … Flagg Road or any of the above mentioned permits, 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

Mark Purple SPR25/3542 Page 2 December 15, 2025 where any of the following parties are included: [list of names and email addresses for Millbrook / Subcontractors, HERS / Energy Evaluator, and Town Building Dept. Staff]. [3] Submitted Technical Documentation All supporting technical submittals, plans, drawings, calculations, diagrams, reports, and attachments submitted or reviewed as part of any permit or inspection for this property. Date Range Please search for records from September 1, 2024 through present. The Town provided responses on November 19, 2025 and December 1, 2025, and assigned reference number 25-143 to this request. Unsatisfied with the Town’s responses, Mr. McLeod petitioned this office and this appeal, SPR25/3542, was opened as a result. Subsequent to the opening of this appeal, the Town provided supplemental responses to Mr. McLeod and this office on December 4, 2025. 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. 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 Responses In its November 19, 2025 response, the Town provided responsive records in the Town’s public records portal and stated, “[w]e have released the responsive records that the Building Dept. had in its possession. We are currently reviewing the communications portion, and expect to fulfill the remainder of the request by Nov. 25.”

Mark Purple SPR25/3542 Page 3 December 15, 2025 On December 1, 2025, the Town uploaded responsive records and stated, “[d]ocuments that are responsive to your request are now available for you to view in the NextRequest system under Request #25-143.” Current Appeal In his appeal petition, Mr. McLeod contends: [T]he Town has demonstrated non-compliance by:  Re-uploading documents already publicly available on the OpenGov permit portal.  Uploading duplicate files that do not relate to the communications I requested.  Failing to produce any emails, internal correspondence, or contractor communications.  Failing to issue any written denial citing a specific exemption.  Failing to cite any statutory exemption for withholding the records.  Failing to request an extension or provide a revised production date.  Failing to state that responsive records do not exist (in lieu of a response). On December 1, 2025, the Town again uploaded the same non-responsive documents and marked the request as fulfilled despite no communications having been produced. This action constitutes a denial of the records requested. Subsequent to the opening of this appeal, on December 4, 2025, Mr. Mcleod asserted the following: On December 4, 2025, the Town marked Request #25-143 as “closed” in the portal and certified that all responsive records had been provided. Later that same day, the Town informed your office that it had now uploaded “all of the responsive records” relating to the communications portion of the request, and apologized for not providing those records by the stated deadline. However, the files appearing in the portal after this representation are identical to the files previously produced on November 19. No additional documents were added, and no new files appear to have been uploaded. The filenames, ordering, and contents are unchanged from the earlier release. In an additional email on December 4th, Mr. McLeod asserted, “[a]mong the materials released is an email . . . [an identified individual’s] October 30 email states that he sent this ‘last letter’ to the Building Department, yet the Town produced no email or attachment from [an identified individual] transmitting that letter to [an identified individual] or any Building Department recipient during the period between October 21 and October 30.”

Mark Purple SPR25/3542 Page 4 December 15, 2025 No Duty to Create Records 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). On December 4, 2025, the Town provided a supplemental response to Mr. McLeod and this office, stating: I have now uploaded, to our NextRequest portal, all of the responsive records to this portion of your request: All communications (including emails, letters, memos, text message transcripts if retained, file notes, or internal comments) sent or received by any Building Department staff regarding … Flagg Road…. I would also like to respond to the email that you sent to the Secretary of State’s Office on 12/3/2025 regarding PRR #25-143, attempting to supplement your appeal. PRR#25-143 was submitted on 11/6/2025, and all records requested that are responsive to your request up to that date are being or have been provided…. Further, in an additional email on December 4th, the Town asserted, “[a]ll documents, including all communications, have been uploaded and released. The ‘visibility’ status was in the process of being finalized; therefore, all records should now be viewable.” Conclusion Where the Town has confirmed it does not possess additional records responsive to Mr. McLeod’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. McLeod is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Spencer McLeod