Fox, John v. Amherst, Town of - Office of the Town Clerk (SPR 20140164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 1, 2014 SPR14/164 Mr. John 0. Fox 90 Fearing Street Amherst, MA 01002 Dear Mr. Fox: I have received your petition appealing the January 2014 response of the Town of Amherst (Town) to your January 9, 2014 request for records. G. L. c. 66, § 10(b) (Supervisor of Public Records has authority to resolve public records appeals); see also 950 C.M.R. 32.08(2) (appeal process). Specifically, you requested copies of all records regarding the Gateway Transportation Study. On January 21, 2014, Town Manager Mr. John P. Musante provided you with a written, good faith estimate to cover the cost of providing you with copies of all the responsive records. Once you paid the estimate, the Town provided you with the records. You appealed to this office because you believe that the Town may have additional records that you did not receive. You posit that there should be records concerning telephone calls, text messages, notes, and the like. Obligations ofthe Town It is the duty of a record custodian to use his superior knowledge of the records to assist a requester in obtaining public records. On April 10, 2014, an attorney on my staff had a telephone discussion with Mr. Musante to inquire as to whether the Town has any records that were withheld pursuant to any of the Public Records Law exemptions, and whether the Town has any further records that would be provided to you. Mr. Musante informed this office that Town personnel conducted diligent searches in January 2014 in order to search for and copy all the records responsive to your requests. Mr. Musante confirmed that the Town is not withholding any records, nor does it have any further records responsive to your January 9, 2014 request. Mr. Musante also stated that the Town has provided all the records it has regarding the Gateway Transportation Study. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John 0. Fox SPR14/164 Page Two May 1, 2014 In your March 7, 2014 petition to this office, you stated that there are questions that you have that are not explained by the records that you were provided. In your letter, you listed a two-page series of questions similar to litigation-type interrogatories that you believe the Town should be obligated to answer. Moreover, you asked an attorney on my staff to forward these questions to Mr. Musante in order to elicit answers for you. Under the Public Records Law, a custodian of records has no duty to answer questions, conduct research or provide analysis. Therefore, I have no authority to order a custodian of records to answer your questions or provide an analysis of the records you were provided. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). There is a presumption that all government employees perform their duties in an honest and impartial manner. LaPointe v. License Bd. ofWorcester, 389 Mass. 454, 459 (1983); see also Konover Mgt. Corp v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992). Therefore, I accept that Mr. Musante understood your request and responded to it with the best of his knowledge. Accordingly, whereas the Town provided you with all the records that are in its custody, your administrative appeal is closed. Supervisor ofRecords cc: Mr. John P. Musante