Chesbrough, Christine v. Tewksbury, Town of (SPR 20260981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2026 SPR26/0981 Denise Graffeo Town Clerk Town of Tewksbury 1009 Main Street Tewksbury, MA 01876 Dear Ms. Graffeo: I have received the petition of Christine Chesbrough appealing the response of the Town of Tewksbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2025, Ms. Chesbrough requested the following: [C]opies of all records in the Town’s possession related to the proposed Battery Energy Storage System (BESS) facility in Tewksbury, Massachusetts. Specifically, I am seeking: [1] All project applications, site plans, and permits submitted by or on behalf of the developer; [2] Staff reports, memos, and correspondence involving the Planning Board, Conservation Commission, Fire Department, Board of Health, and Select Board; [3] Any environmental impact analyses, safety or hazard assessments, or emergency response plans related to the proposed facility; [4] Any Fiscal Impact Statements, Host Community Agreements (HCA), Payment In Lieu of Taxes (PILOT), or Tax Increment Financing (TIF) documents; [5] Meeting minutes, emails, and letters between town officials, consultants, and the project proponent; [6] Correspondence with state or federal agencies, including MassDEP, Department of Fire Services, or Department of Energy Resources, regarding project siting, permitting, or safety review. 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

Denise Graffeo SPR26/0981 Page 2 April 1, 2026 Previous Petition and Appeals This request was the subject of a previous petition from the Town, and previous appeals. See SPR25/3317 Determination of the Supervisor of Records (November 14, 2025); SPR26/0087 Determination of the Supervisor of Records (January 23, 2026); and SPR26/0484 Determination of the Supervisor of Records (February 25, 2026). In my February 25th determination, I ordered the Town to provide the responsive records on a rolling basis. The Town provided responses on March 12, 2026 and March 13, 2026. Unsatisfied with the responses, Ms. Chesbrough petitioned this office and this appeal, SPR26/0981, 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. See 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 March 12th and March 13th Responses In its March 12, 2026 response, the Town stated the following: [An identified individual] emailed you on January 12th, explaining the difficulties the Town was having with the volume of emails that needed to be reviewed by Town Counsel. Additionally, he asked if there were any documents he could get to you while awaiting the emails. You requested the Action Report from the Warwick Fire Department which was provided to you on January 20, 2026. You also then asked for a copy of the HCA, which was also provided to you on January 28, 2026. [1] [Regarding Item 1] All documents the Town Managers office has received, have also been posted to the EFSB website: https://eeaonline.eea.state.ma.us/dpu/fileroom/#/dockets/docket/12515[;]

Denise Graffeo SPR26/0981 Page 3 April 1, 2026 [a] Here is link to our internal file as well [link provided][;] [2] [Regarding Item 2] The only relevant document pertaining to this request is a memo from our Stormwater Engineer and memo from the Town Manager to the Conservation Commission, reference attached documents[;] [3] [Regarding Item 3] If any of those documents have been submitted for the project they can be found on the EFSB document database https://eeaonline.eea.state.ma.us/dpu/fileroom/#/dockets/docket/12515[;] [4] [Regarding Item 4] [a] The HCA has been posted to the website since January 28, 2026[;] [b] I also previously sent this to you on January 28th via email, reference attached[;] [c] There are documents pertaining to the PILOT negotiation process which are exempt from the OML as these negotiations are ongoing. They will presumably be released when a PILOT agreement is completed[;] [5] [Regarding Item 5] [a] Emails for the project can be accessed here: [link provided][;] [i] The folder was too large to send as an attachment so I have shared it from my OneDrive. There are two things that you need to do to be able to view the emails[;] [A] First, you will have to download and unzip the folder[;] [B] Second, you will have to load the pst files into the Outlook desktop application[;] [C] To import the pst files in Outlook you can click File -> Open and Export -> Outlook Data Files -> Add File -> browse the unzipped folder that contains the pst files and open each file [6] [Regarding Item 6] [a] Correspondence related to your request can be found in the above link, copied again here: [link provided] The Executive Session minutes from May 20, 2025, September 23, 2025, and October 21, 2025, have not been approved and released by the Select Board; they were on the March 10th agenda for approval and release, but the matter was continued pending an opinion from Town Counsel. They are on the March 24th agenda for review. If the Board votes to approve and release these three sets of minutes, I will forward copies to you. Additionally, the Board will be responding to your Open Meeting Law complaint during the March 24th meeting…. In a March 12, 2026 email to the Town, Ms. Chesbrough stated, “[w]e cannot access the 2 PST files as we do not have permission. Could you please change the permission settings on the files so we can access them.”

Denise Graffeo SPR26/0981 Page 4 April 1, 2026 In its March 13, 2026 response, the Town stated, “I just shared an access link directly to your email. The same link can be accessed here [link provided].” In a March 13, 2026 email to the Town, Ms. Chesbrough stated, “[t]he file you sent to me was not listed as a PSTs file. I was…able to open that one. The file you sent appears to be the EFSB submission documents, which I was already able to access through the EFSB site. These are the ones listed a PSTs file that I cannot open, I listed them below. Would it be possible to provide those email records in another format (such as PDF or individual email files) so they can be opened without Outlook?” In an additional March 13, 2026 response, the Town provided an additional shared folder. In a March 13, 2026 email to the Town, Ms. Chesbrough stated, “I was able to download it successfully, however the email records appear to be in PST format. When I attempt to open the file my computer asks what program to use, and I do not have Microsoft Outlook installed, so I am unable to access the contents. Would it be possible to provide the email records in another format such as PDF, EML, or MSG so that they can be opened without Outlook?” In a March 13, 2026 email to the Town, Ms. Chesbrough stated, “I still cannot open this. It’s requiring you to have an internal email from the town which I do not have. I had someone else try it for me too and they got the same message.” In an additional March 13, 2026 response, the Town stated, “[y]ou do not need a Town email; again, you have been given permissions to access them. You will need to have outlook open to load the files, without outlook you will not be able to load the files. If you have word or excel, more so access to Microsoft applications, you have access to outlook.” In a March 14, 2026 email to the Town, Ms. Chesbrough stated the following: The files were sent in PST format. We have made multiple attempts to access these files but have been unable to properly open or import them. You must have an Outlook account to do this…my daughter attempted to access the files using a school Outlook account, and only two emails appeared to be visible. No additional folders or messages could be opened…we still only saw the same two emails she saw last night. In all cases, no other content could be accessed. Additionally, there appears to be emails missing from the production. There is a list of Town employees and elected officials included in the PST files, but not all names are on this list. I see a DPW worker listed, does the head of the DPW have any files? There are some other department accounts I would expect are not included. Notably, [an identified individual], the former Town Manager, is also not included. I have sent emails to other individuals not listed as did other residents as I have seen the emails, so I know their accounts contain messages…

Denise Graffeo SPR26/0981 Page 5 April 1, 2026 Current Appeal In her March 18, 2026 appeal to this office, Ms. Chesbrough states, “I am writing to report noncompliance by the Town of Tewksbury regarding my public records request concerning the proposed battery energy storage project…” In a telephone conversation between this office and the Town, the Town confirmed that it provided Ms. Chesbrough with all responsive records. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public 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 only 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). Where the Town has confirmed that it has no additional records responsive to Ms. Chesbrough’s request, I will now consider this aspect of the appeal closed. Preferred Format of the Requestor The Town is advised that a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic format or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Ms. Chesbrough’s appeal, I find the Town must clarify whether the responsive records can be provided in a format that can be accessed by her. I encourage the parties to work together to resolve these outstanding issues concerning the format of the records. Conclusion Accordingly, the Town is ordered to provide Ms. Chesbrough with a response to her 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.

Denise Graffeo SPR26/0981 Page 6 April 1, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Christine Chesbrough Robert Maynard John Curran