Christine A. Bostek v. Plymouth, Town of - Community Preservation Committee (SPR 20160794)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18,2016 SPR16/794 Ms. Kathleen O'Donnell, Esq. P.O. Box 234 12 Belcher Circle Milton, MA Dear Attorney O'Donnell: I have received the petition of Christine Bostek appealing the response ofthe Town of Plymouth (Town)-Community Preservation Committee (Committee) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on April19, 2016, Ms. ---Bttstek--r-ettttestecl-reeerds-rehtted--to--a-speci-frcaHy--iderrtified:--piece-ofpropet ty. It appears-Ms,-.- ----- Bostek submitted a further public records request on May 2, 2016. Previous Determination These requests are related to previous appeals. See SPR16/039 Determination of the Supervisor of Records (February 18, 2016); SPR16/586 Determination ofthe Supervisor of Records (August 17, 2016). In my August 17 determination I closed the appeal with the proviso that the Committee provide Ms. Bostek a supplemental response, provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). The Committee provided a response in a letter dated August 29, 2016. Subsequently, Ms. Bostek sought further action from this office with respect to this matter. This appeal (SPR16/794) 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, § 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Kathleen O'Donnell, Esq. SPR16/794 . Page 2 October 18,2016 Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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 District 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(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 of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. --------''Fe--a~~ist-in-requesting--a:nd--resporrdirrg-to--requests-forpubltc--re-curds-p-1-ease-referto-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 conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The Committee's August 29letter In the Committee's August 29letter to Ms. Bostek you provide information about a particular "survey or plot plan." You also indicate that Ms. Bostek is making "demands for funding, challenges to legal opinions, and requests for restricted access." Further, you explain "[a]ll records in the care and custody of the Committee that were requested on April19 and May 2 have been provided. No materials have been withheld by the Committee or by me." No duty to create records Under the Public Records Law, the Committee 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 ofthe request. See G. L. c. 4, § 7(26).

Ms. Kathleen O'Donnell, Esq. SPR16/794 Page 3 October 18, 2016 I understand an attorney on my staff contacted you about this matter. You indicated that you informed Ms. Bostek that she may wish to make her request to other relevant Town departments. See 950 C.M.R. 32.05(4) (a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information). Conclusion Accordingly, whereas the Committee has explained it provided all responsive records and is not withholding records, I will consider this appeal closed. a Supervisor of Records ~ ~ ~~~~-cc:_Ms~Christine_Bostek Mr. Derek Brindisi