McLeod, Spencer v. Southborough, Town of (SPR 20261407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2026 SPR26/1407 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 April 5, 2026, Mr. McLeod requested “…all records in the possession, custody, or control of the Town of Southborough Building Department related to (1) the enclosed or attached structure constructed at … Flagg Road, Southborough, MA 01772 (commonly referred to as a three-season room), and (2) any gas fireplace or gas appliance installed within that structure, as part of Building Permit BP-25-18.” Specifically, Mr. McLeod sought: …all records related to the design, permitting, inspection, and approval of these elements, including: [1] Any permit application, amendment, or supplemental submission referencing or depicting the structure and/or any gas fireplace or gas appliance [2] Any approved or reviewed plans, drawings, or specifications depicting the structure and/or fireplace as proposed or as built [3] Any permits issued for gas, plumbing, or mechanical work associated with the fireplace or gas line installation [4] Any inspection records, field notes, or signoff sheets related to the structure and/or fireplace [5] Any communications referencing the structure and/or fireplace, including but not limited to emails, letters, memoranda, or internal notes [6] Any records reflecting a change in the design, scope, or classification of the structure (including but not limited to changes from screened porch to enclosed or three-season room) 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 SPR26/1407 Page 2 April 27, 2026 [7] Any records reflecting the basis for, or evaluation supporting, approval of the structure and any installed gas appliance as constructed… Date Range[:] September 1, 2024 through the present. The Town responded on April 6, 2026 and April 15, 2026, assigning the request reference number 26-62. Unsatisfied with the Town’s responses, Mr. McLeod petitioned this office and this appeal, SPR26/1407, 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. 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 April 6th and April 15th Responses In its April 6, 2026 response, the Town provided responsive records and stated, “[t]he documents relative to this request that were created after Request 25-143 on November 20, 2025 have been uploaded. The rest of the documents can be found under Request 25-143…” In its April 15, 2026 response, the Town provided additional records and stated: There are no new documents relative to this request since Request 25-143 was submitted on November 20, 2025. All previously existing documents can be found under Request 25-143 at the Town’s public records portal, as that request has already been fulfilled… There are no plumbing or gas permits included as part of Building Permit BP-25-18. These permits are issued separately and cannot be linked within the system. As a courtesy, two permits that are likely related have been uploaded; this information is also available to the requester through the Town’s online portal… Any additional requests will need to be more specific

Mark Purple SPR26/1407 Page 3 April 27, 2026 (e.g., by permit number), all of which can be accessed through the Town’s online portal linked above. There have been no new email or written communications regarding this property since the last email pull conducted for the previous public records request. Current Appeal In his appeal petition, Mr. McLeod argued, “[t]he Town’s response did not produce any records reflecting the design or approval of the enclosed structure as constructed.… The production does not include any records demonstrating the existence or location of documents responsive to the structure described in the request.” In a telephone conversation with this office on April 27, 2026, the Town confirmed that it possesses no additional records responsive to the request. 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). Further, 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). Conclusion Given that the Town has confirmed that it does not possess any additional responsive records, and this office has no authority to compel the Town to create records, I will 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Spencer McLeod