Mahoney, Lindsey v. Westwood, Town of - Town Administrator (SPR 20150695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 10, 2015 SPRlS/695 Mr. Thomas McCusker, Jr. Esq. Town of Westwood 580 High Street Westwood, MA 02090 Dear Attorney McCusker: I have received the petition of Lindsey Mahoney appealing the response of Town of Westwood-Town Counsel (Town) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Mahoney requested a copy of emails between the Town and a developer's attorney. The Town provided responsive records in a response dated August 3, 2015. In her appeal petition, Ms. Mahoney indicates that she believes the email trail provided was edited with sections removed. Ms. Mahoney specifically refers to a March 16, 2015 email that she claims appears to have a section removed. The basis of Ms. Mahoney's appeal is that she seeks "the emails that were removed, unveiling the full un-edited correspondence." The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Purpose ofr equest; identity ofr equester In her petition, Ms. Mahoney indicatesthere_q_uested records concern an appeal before the Town Zoning Board of Appeals and related litigation. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Thomas McCusker, Jr., Esq. SPR15/695 Page Two December 10, 2015 59, 64 (1976). Accordingly, Ms. Mahoney's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). Prohibition on inquiring into reason for request In an email dated June 24, 2015 to the requester's attorney that assisted with the request, you state "please advise why you believe you are entitled to the documents." Please note that, with the exception of records related to Exemption (n), a custodian is prohibited from inquiring into a requester's status or motivation. See 950 CMR 32.05(5). As discussed above, access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas, 371 Mass. at 64. No duty to create records In an email to an attorney on my staff on December 8, 2015, you state "I have no emails after March 6th or before March 15th." You further state "I have made full disclosure." Under the Public Records Law, the Town is not required to create a list ofrecords or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the Town has indicated that it provided all re ponsive records, I will consider this appeal closed. cc: Ms. Lindsey Mahoney