Hayes, Francis v. Medford, City of (SPR 20150493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 23, 2015 SPRlS/493 Mr. Edward Finn City Clerk City of Medford Office of the City Clerk 85 George P. Hassett Drive, Room 103 Medford, MA 0215 5 Dear Mr. Finn: I have received the petition of Francis Hayes appealing the May 21, 2015 response of the Medford City Clerk (City) his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hayes requested all records in fiscal budgets from the start of Michael McGlynn's term as Mayor in regard to budgets pertaining to Medford-Brooks Estate Land Trust and Oak Grove Cemetery (Cemetery) and/or grants ofthe same, including day-to-day operating expenses ofthe Medford-Brooks Land Trust (M-BELT). Written Response In your response, Mr. Hayes was informed that the City does not have a separate budget document for the Cemetery; any monies the City allotted for expenses at the Cemetery are incorporated into the City budget held by the Mayor's Office. Mr. Hayes was also informed that the Clerk's Office does not have custody of any budgets for theM-BELT. You suggested that Mr. Hayes contact Thomas Lincoln, President ofM-BELT directly for their annual reports, which Mr. Hayes has done. It is my understanding that M-BELT is a private, 501c non-profit organization, not a government entity. Therefore, Mr. Hayes may seek the annual reports through the Non-Profit Organizations/Public Charities Division of the Office of the Attorney General (AGO). Your letter also informed Mr. Hayes that he may make an appointment to review the past twenty-eight years of City budgets, and the City will waive all applicable public records fees. However, if Mr. Hayes prefers copies of the records, he has been provided with a written, good faith estimate. Mr. Hayes would be required to send the City a check for $41.00 to cover the cost of search time to cull the budget records at the lowest paid hourly rate of eighteen dollars per hour ($18.00), and for photocopies at twenty cents ($.20) per page. A custodian of records may OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Edward P. Finn SPR15/493 Page Two November 23, 2015 assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty. Gen. 157, 165 (May 18, 1977). The City is not required to create a record in response to Mr. Hayes's request. After the intervention of this office, you informed an attorney on my staff that the City does not have the day-to-day expenditures ofthe M-BELT, and only has the allocated amounts for the Cemetery listed in the budgets held by the Mayor's Office. You had directed Mr. Hayes to the 2016 City Budget for fiscal year July 1, 2015-June 30,2016 on the Mayor's Office webpage. The expenditures for the Cemetery are listed on Page 42 of the City Budget. See http://www.medfordma.org/mayorlcity-budget. You informed this office that you provided Mr. Hayes with any annual reports ofM-BELT that your office was givenas part of specific City Council meetings regarding M-BELT. Whereas, M-BELT is not a Medford government entity, annual reports are not required to be submitted to the City, Mr. Hayes may find annual reports that M-BELT files with the Non-profit Corporations-Public Charities Division of the AGO. Accordingly, the City Clerk's Office has properly respond to Mr. Hayes's request and provided access to and/or copies of requested records that are wit nits custody. This administrative appeal is closed. cc: Mr. Francis Hayes