Shein, Bill v. Great Barrington, Town of - Office of the Town Clerk (SPR 20260567)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0567 Joshua Risen Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Mr. Risen: I have received the petition of Bill Shein appealing the response of the Town of Great Barrington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 31, 2025, Mr. Shein requested “[e]lectronic communications (including emails and attachments) whether sent or received, from to, or copied to Interim Town Manager/Assistant Town Manager . . . dated January 28, 2025 to the present, concerning any of the following”: [1] [An identified address], including demolition of the former building or construction of a park or landscaped area[;] [2] MassDEP inspections, inquiries, or investigations related to [an identified address][;] [3] Planning Board review, site plan review, or the bypass of such review for work associated with [an identified address] and related pedestrian/sidewalk projects[;] [4] Administration, amendment, or redirection of MassWorks grant funds related to [an identified address][;] [5] Any preliminary inquiries, discussion, correspondence, or materials related to a OneStop for Growth Expression of Interest (“EOI”) and contemplated full application regarding “Downtown Alleyway Improvement” (whether or not an application was ultimately submitted)[;] This request includes communications with any individuals or entities, known or unknown to the requester, provided that [an identified individual] is a sender, recipient, or copied party and the communication concerns the subject matters described above, including communications with: 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

Joshua Risen SPR26/0567 Page 2 March 3, 2026 [1] [An identified individual] and/or representatives, employees, agents, consultants, or attorneys of [an identified entity] and/or its affiliate LLCs[;] [2] The Massachusetts Department of Environmental Protection (MassDEP)[;] [3] Staff, board members, consultants, and agents of Berkshire Regional Planning Commission (BRPC)[;] [4] Executive Office of Economic Development (EOED) staff or representatives solely in connection with MassWorks or other grant funding, including any preliminary inquiry or discussion regarding a potential OneStop for Growth grant application involving the Mahaiwe Block or related rear-alley or infrastructure improvements. The Town provided a response on February 6, 2026. Unsatisfied with the Town’s response, Mr. Shein petitioned this office and this appeal, SPR26/0567, was opened as a result. Subsequently, the Town provided Mr. Shein with an additional response on February 25, 2026. 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 February 6th Response In its February 6, 2026 response, the Town stated, “the Town has identified documents responsive to this request…all of the responsive documents are email communications between [an identified individual] and Town Counsel and/or Town’s tax title counsel regarding legal services and legal advice. As such, those emails are subject to the attorney-client privilege…”

Joshua Risen SPR26/0567 Page 3 March 3, 2026 Current Appeal In his February 18, 2026 appeal to this office, Mr. Shein stated, “[t]he production appears to be incomplete. The request sought responsive correspondence and attachments…the request specifically included…item (5)…Attached are two screenshots of emails produced by a different public entity in response to a records request. Both are addressed to [an identified email], fall within the date range of the request, and concern improvements to a downtown alleyway. Neither email was produced by the Town of Great Barrington. Given the existence of responsive emails not produced by the Town, I respectfully request that the Supervisor of Records require the Town to conduct a new and complete search, produce all responsive materials, and provide a written description of [how the search was conducted].” In its February 25, 2026 response, the Town stated, “[a]fter the Town’s receipt of the appeal, [the Town] conducted a further e-mail search and discovered the two emails identified by Mr. Shein as having been received in a response to a records request he made to a different public entity…Town copies of those emails are included with this letter…” In a February 25, 2026 email to the Town and this office, Mr. Shein stated the following: While I appreciate the Town’s initial response and the two responsive documents, I respectfully request that your office still require the Town to provide further explanation for its incomplete production, as requested in my appeal, and provide information including: [1] The custodians whose records were searched; [2] The email systems, servers, archives, and shared drives searched; [3] The search terms used; [4] Whether the search was conducted by the Records Access Officer or IT personnel, rather than solely by the individual custodian; and [5] Whether any [additional] responsive materials were withheld other than those described as attorney-client communications. Given the incomplete production and Mr. Risen’s note that “it is not clear why” all responsive materials were not initially produced, requiring the requested information, including at #4 above, will ensure all appropriate technical and other resources are engaged by the Town to meet the requirements of the Public Records Law. Based on Mr. Shein’s appeal, it appears that he is not seeking to appeal the Town’s claim of attorney-client privilege to withhold responsive records. Records in Existence; No Duty to Answer Questions Please be advised, under the Public Records Law a custodian is not required to create a records in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public

Joshua Risen SPR26/0567 Page 4 March 3, 2026 employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Upon review, where Mr. Shein submitted to the Town a list of questions on February 25, 2026, I find the Town has no duty under the Public Records Law to answer such questions. However, based on the Town’s responses, coupled with Mr. Shein’s February 18, 2026 appeal to this office, it is unclear whether the Town possesses additional 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). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Shein with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Bill Shein