Michael & Rhonda Jusczak v. Dracut, Town of - Engineering Department (SPR 20161026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 5, 2016 SPR16/1026 James A. Duggan Town Manager Town of Dracut 62 Arlington Street Dracut, MA 01826 Dear Mr. Duggan: I have received the petition of Michael and Rhonda Jusczak appealing the November 9, 2016 response of the Town of Dracut-Engineering Department (Town) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, the Jusczaks requested a, copy of all records associated with an application for subdivision approval, including all engineering plans and attachments, as well as related correspondence. Prior appeals The requested records were the subject of prior appeals. See SPR16/170 Determination of the Supervisor ofRecords (June 21, 2016) and SPR16/764 Determination ofthe Supervisor of Records (October 13, 2016). The Juscaks previously stated that as part ofthe sub-division being approved, the document with all the necessary sign-offs should be included. In my October 13 determination, I ordered the Town to provide the Jusczaks with another written response that informs them whether another Town department, besides the Planning/Engineering Department, is retaining the document in its completion, so that the Jusczaks may receive a copy. I also ordered the Town to provide the Jusczaks with a refund check in the amount of $20.50 due to an incorrect amount of the refund provided to them by the Town in July 2016. Fee refund insufficient In response to my October 13 order, the Town provided the Jusczaks with a $20.05 refund of the fee payment made by the Jusczaks prior to receiving records since their original request in December 2015. In accordance with my order, the Town should have provided the Jusczaks with a refund of $20.50, not $20.05. The Jusczaks informed this office that due to the incorrect amount of the refund, they are unable to cash the refund check. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

James A. Duggan SPR16/1026 Page 2 December 5, 2016 No Further Records In a November 14 petition, the Jusczaks appealed the November 9 response from the Town's Engineer, Mark Hamel. The Jusczaks continue to state that they have not received a copy of the completed application for approval of the subdivision. In a May 16 letter, Mr. Hamel provided the Jusczaks with a list of each record or item that the Planning and Engineering Departments have provided in their entirety. Mr. Hamel stated that there are no other documents that exist in the files associated with the subdivision. In compliance with my October 13 determination, Mr. Hamel stated in his November 9 response that the Engineering/Planning Department has previously sent the Jusczaks a full list of documents identified and provided. He informed the Jusczaks that "the Engineering/Planning Department has also provided all records provided by other Town departments in response to our inquiries associated with the Hearthstone Lane subdivision. The Engineering/Planning Department has been informed by other departments that they have provided all relevant documents as well." An attorney on my staff spoke with Mr. Hamel on November 17, confirming that there are no further records in existence responsive to the request. Under the Public Records Law, the Town 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). Accordingly, I find that the Town has met their statutory and regulatory obligation under the Public Records Law to explain it provided all responsive records. Order Accordingly, the Town is hereby ordered to provide the Jusczaks with a newly issued refund check in the amount of $20.50. If the Town provides a response to accompany the refund check, a copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If the Jusczaks are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court ofthe Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: Mr. Mark Hamel Michael and Rhonda Jusczak