Comeau, Jonathan v. Canton, Town of - Town Clerk (SPR 20261275)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2026 SPR26/1275 Tracy K. Kenney Town Clerk Town of Canton 801 Washington Street, 1st Floor Canton, MA 02021 Dear Ms. Kenney: I have received the petition of Jonathan Comeau appealing the response of the Town of Canton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 18, 2026, Mr. Comeau requested the following: [1] All emails, text messages, internal messages, letters, call logs, and written communications between any town employee, official, School Department employee, and Any parent, resident, and/ or [a named individual] / Canton Tree discussing snow removal of the basketball courts at the Kennedy school. [2] Any internal town or school communications discussing: Whether the Town or School Department would clear the basketball court Decisions not to clear the courts Approval, authorization, or insurance requirements related to a private party performing the work[.] The Town responded on March 4, and March 30, 2026. Unsatisfied with the Town’s responses, Mr. Comeau petitioned this office, and this appeal, SPR26/1275, 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, 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

Tracy K. Kenney SPR26/1275 Page 2 April 21, 2026 § 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. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s March 4th and March 30th Responses In its March 4, 2026 response, the Town explained that “a search of the municipal email system produced approximately 644 potentially responsive emails that must be compiled, analyzed, and potentially redacted in accordance with the law,” and provided a total fee estimate of $350. Subsequently, I understand Mr. Comeau paid the fees. In its March 30, 2026 response, the Town states “that a refund be issued to [Mr. Comeau] in the amount of $137.50.” The Town goes on to explain the following:

Tracy K. Kenney SPR26/1275 Page 3 April 21, 2026 Upon receipt of your $350 payment in response to the Town’s good faith estimate, the Town conducted a detailed analysis of hundreds of potentially responsive records, including more than six hundred emails that were generated during the time period set forth in your request. These included records generated by all municipal departments with the exception of the Canton School Department. As previously stated, requests for school department records must be submitted to the Records Access Officer for the Canton School Department. Please be advised that all of the assembled records, were irrelevant and not responsive to your request, as such, there are no records responsive to your request(s) in the municipal office’s possession, custody, and control. Current Appeal In his appeal petition, Mr. Comeau argues the following: I paid the requested fee. However, in its March 30, 2026 response, the Town stated that after review of those records, none were deemed responsive to my request. Additionally, the Town later clarified that the search terms used were limited to: “Kennedy,” “basketball,” “Cammarata,” “Canton Tree,” and “JFK.” Notably, the Town did not include terms such as “snow,” “snow removal,” or similar language directly tied to the subject of the request, despite those terms being central to my original request. As a result, I have the following concerns: 1. The Town identified a substantial number of emails as “potentially responsive,” yet produced no records and has not provided a sufficient explanation for this outcome. 2. The search methodology does not appear to have been reasonably calculated to locate responsive records, given the omission of key subject matter terms explicitly stated in the request. 3. I paid a fee based on the Town’s representation that responsive records had been identified, but no records were produced. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee.

Tracy K. Kenney SPR26/1275 Page 4 April 21, 2026 Mr. Comeau is advised that, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Records in Existence; Possession, Custody, or Control 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 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). Based on the records identified in the Town’s March 4th response, and the information provided in Mr. Comeau’s appeal petition, it is unclear whether the Town possesses records responsive to Mr. Comeau’s request. If the Town does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Town is ordered to provide Mr. Comeau with a response to the 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. Mr. Comeau may further 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: Jonathan Comeau