McLeod, Spencer v. Southborough, Town of (SPR 20261134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2026 SPR26/1134 Mark J. 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 January 29, 2026, Mr. McLeod requested, “[a]ll communications (including but not limited to emails, attachments, letters, memoranda, internal notes, file notes, or other written or electronic correspondence, including communications sent from or received on personal email account if used for Town business) between: [three identified individuals] and [two identified individuals] for the period November 20, 2025 through January 29, 2026.” Previous Appeals This request was the subject of previous appeals. See SPR26/0394 Determination of the Supervisor of Records (February 12, 2026) and SPR26/0684 Determination of the Supervisor of Records (March 12, 2026). In my March 12th determination, I ordered the Town to clarify whether it possessed additional responsive records. The Town provided responses on March 16, 2026 and March 28, 2026. Unsatisfied with the Town’s responses, Mr. McLeod petitioned this office and this appeal, SPR26/1134, 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). 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 J. Purple SPR26/1134 Page 2 April 8, 2026 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. See 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 16th and March 28th Responses In its March 16, 2026 response, a representative for the Town stated the following: I have reviewed the details of your request with my IT Director, and the results of his search of our email servers for that requested information. After this additional review, I am reiterating that you have the responsive records that you are requesting. There were no redactions or exemptions that were made. [Three identified individuals] all had emails in both their Inbox and Sent folders that spanned the timeframe of your request (not just the end), with [an identified individual] having the most… I don’t see how the correlation between the number of emails in the Inbox and Sent folders is relevant. I do acknowledge that there are more emails in the respective Inboxes than in the Sent folders ([an identified individual] – 19/3, [an identified individual] – 9/2; [an identified individual] – 82/44). However, not all emails received require a response; some are simply informational. In a March 16, 2026 email to the Town and this office, Mr. McLeod stated, “…[i]t is clear that the records responsive to this request in [an identified individual’s] Inbox were run with the incorrect date range. It needs to be rerun.” Additionally, in a subsequent email, Mr. McLeod stated, “[o]nly 10 emails from [an identified individual’s] inbox were produced. 13 if you count 3 that he shifted to the Archive folder. The remaining 69 emails still need to be produced.” In its additional March 16, 2026 response, a representative for the Town stated the following: I had my IT Manger re-run the search of [an identified individual’s] emails on our server based on your time parameters and search words. The output was consistent with what I have already provided to you. There were a few emails regarding [two identified addresses] which came up in the pull because they also

Mark J. Purple SPR26/1134 Page 3 April 8, 2026 had HERS rating reports involved; those were excluded because they were not responsive to your address or permit…. In a March 27, 2026 email to this office and the Town, Mr. McLeod stated, “[the Town] has confirmed that 82 responsive inbox emails were identified and that no exemption or redactions apply, yet only a small subset of those records has been produced. [The Town] has also indicated that the remaining responsive records will not be produced…” In its March 28, 2026 response, a representative for the Town stated, “[r]egardless of any specific numbers that I have stated (or inadvertently misstated), Mr. McLeod has been provided all the documents in the Town’s possession that are responsive to his request. The Town’s IT Department conducted a second search that did not provide any different results than the previous search.” Current Appeal In his March 28, 2026 appeal, Mr. McLeod stated the following: … [The Town] confirmed that there were more responses for [an identified individual’s] inbox than his outbox on this search…This is not just inadvertently misstated numbers…[The Town] wants us to believe that the 82 was just a slip of the finger, when everything else tracks what was actually provided. (I’m ignoring [an identified individual’s] boxes for right now, because her emails were simply not provided at all despite being requested). The only outlier is [an identified individual’s] inbox, for which only 10 documents were provided. All 10 of which are from between the dates of January 26 and January 29, rather than the requested range of November 30 – January 29. I have provided a list of emails that were specifically referenced in emails contained in [an identified individual’s] outbox, that are necessarily responsive to this request, but not produced. This list is far from exhaustive… In a March 28, 2026 supplement to his appeal, Mr. McLeod stated, “…this request is highly relevant to an active appeal with the state Building Code Appeals Board…” Based on Mr. McLeod’s petition and the Town’s response, 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). However, 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). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b).

Mark J. Purple SPR26/1134 Page 4 April 8, 2026 Conclusion Accordingly, the Town is ordered to provide Mr. McLeod with a response to the 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. McLeod may 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: Spencer McLeod