Timothy A. Toomey v. Office of the Attorney General - Environmental Protection Division (SPR 20160318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 25,2016 SPR16/318 Ms. Hanne Rush, Esq. Assistant Attorney General Division of Open Government Office of the Attorney General One Ashburton Place Boston, MA 021 08 Dear Attorney Rush: I have received the petition of Timothy Toomey appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Toomey requested copies of records related to a specifically identified Open Meeting Law determination. See OML 2016-12 (February 16, 2016). The AGO provided responsive records in a response dated March 3, 2016. In his petition Mr. Toomey stated his belief the AGO response failed to include "email information" and "phone log information." The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(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). 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(c); 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). No duty to create records In a conversation with an attorney on my staff, you indicated the AGO does not possess a responsive phone log. In addition, you explained the AGO provided all emails supporting the investigation, although you further state this portion of Mr. Toomey's appeal is unclear. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Hanne Rush, Esq. SPR16/318 Page 2 May 25,2016 Under the Public Records Law, the AGO is not required to create a list of records 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, § 10(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). Whereas the AGO does not possess any additional records contemplated in Mr. Toomey's appeal petition, I will consider this appeal closed. Mr. Toomey may wish to provide additional detail directly to the AGO concerning the nature of his objections to the AGO's response. 950 C.M.R. 32.05(4). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to }::onduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determinati n for further information. illiams cc: Mr. Timothy Toomey