Jeffrey P. Bennett v. Templeton, Town of - Town Administrator (SPR 20170004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 5, 2017 SPR17/004 Holly A. Young Assistant to Town Administrator Town of Templeton 160 Patriots Road East Templeton, MA 01438 Dear Ms. Young: I have received the petition of Jeffrey P. Bennett requesting reconsideration and reversal of my prior written determination on his public records request. G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Bennett requested a copy of "the contract between the Town of Templeton (Town) (through its municipal light and water plant) and the Narragansett Regional School District." Prior appeal and determination The Town provided Mr. Bennett with an initial response on November 3, 2016 stating that the responsive record is not in the possession of the Town, and that Mr. Bennett should make his request to Templeton Light and Water. Mr. Bennett appealed. After the intervention by a member of my legal staff, the Town provided a second response on December 28, 2016. After a review of the Town's December 28 response, I issued a determination on the public records request. See 16/1234 Determination of the Supervisor of Records (December 29, 2016). In my December 29 determination, I found that given the Town has no record responsive to the request, has no obligation under the Public Records Law to create a record in response to the request and that that this office has no authority to compel the Town to create records in response to a public records, the appeal was closed. See G. L. c. 66, § 10(a) (2014 ed.); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). On January 3, Mr. Bennett petitioned for reversal of my determination and this appeal was opened. Mr. Bennett submitted for review, a January 9, 2014letter from the Department of Revenue, Division of Local Services (DOR) to the Town's Board of Selectmen concerning the effect of special legislation that combined the water and light services into a single municipal department. In its letter DOR states, "the special act in question clearly abolished the water 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

Holly A. Young SPR17/004 Page 2 January 5, 2017 department under the jurisdiction of the selectmen acting we assume as water commissioners, and placed the operation of the water service within a single, consolidated lighting and water plant department (Templeton Municipal Lighting and Water Plant). The light plant manager is given responsibility for management of the operation of the water service as well as the light service and in so doing exercises those powers, duties and rights found in G. L. c 164 ... " It is Mr. Bennett's contention that based on DOR's opinion in its 2014letter, Templeton' Municipal Lighting and Water Plant is not a separate legal entity, but under the control of the Town. Mr. Bennett is incorrect. DOR states, "[w]ith respect to fiscal matters, under G. L. c. 164, light plants are not separate legal entities and need approval oft heir municipalities' legislative bodies to borrow." (emphasis added). See G. L. c. 164 (Manufacturer of Gas and Electricity). In a January 5, 2017 telephone discussion with an attorney on my staff, you confirmed for the second time that the Town does not have a copy of the responsive contract requested by Mr. Bennett. Mr. Bennett should be advised, the Town has no obligation to create a record in response to a public records request. G. L. c. 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Accordingly, after another careful review and whereas the Town is not in possession of the responsive contract, I reaffirm my December 29, 2016 determination and decline to reverse my findings and determination. Mr. Bennett may wish to make a public records request directly to the Templeton Light and Water Plant. This appeal remains closed. If Mr. Bennett is not satisfied with the resolution ofthis administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, !f!dtutt 111U~ Rebecca S. Murray - Supervisor of Records cc: Jeffrey P. Bennett