Michael & Rhonda Jusczak v. Dracut, Town of - Engineering Department (SPR 20170631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 17, 2017 SPR17/631 James A Hall, Esq. Town of Dracut Legal Counsel Qua, Hall, Harvey & Walsh 25 Fletcher Street Chelmsford, MA 01824 Dear Attorney Hall: I have received the petition of Michael and Rhonda Jusczak appealing the May 4, 2017 response of the Town of Dracut (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 19, 2017 Mr. and Mrs. Jusczak requested a copy of the application for the Primrose Hill Estates' subdivision approval with all engineering plans and attachments including any and all final Town Department sign-offs for the approval. After the intervention of a Public Records Division attorney, you conferred with the Town's Engineer, Mark Hamel, and asked him to compile and copy all the records responsive to the April 19th request. On May 6, 2017, a packet ofrecords was provided in-hand to Rhonda Jusczak at a Water District meeting. Your May 4th cover letter that accompanied the records contained an itemized list describing the documents enclosed in the packet. Your letter noted that enclosed with the records was a copy of a cover sheet for records previously requested and provided in 2016. Whereas, Mr. and Mrs. Jusczak requested a document showing Town department sign offs for approval of the subdivision, you explained that the Town has never required departmental sign-offs, therefore they do not exist. The Town did provide Mr. and Mrs. Jusczak with Form M check-off lists which requested comments on the subdivision plan from Town departments. The only Form M that does not exist is regarding the Board of Health (BOH), because the BOH did not respond when the form was provided. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § lO(a); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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. Hall, Esq. SPRI 7/631 Page 2 May 17, 2017 During the May 16th telephone conservation with a Public Records Division attorney, you explained that Mr. Hamel did not initially locate a copy of the preliminary plan, but after a diligent search of the Town's archived records, the preliminary plan has been located and will be provided to Mr. and Mrs. Jusczak. It is also my understanding that the records that were provided previously, as noted in item number two your May 4th letter, will be copied again and provided to Mr. and Mrs. Jusczak. You indicated that you will provide another cover letter relative to the preliminary plan and the second copy of the records previously provided in 2016. Conclusion Accordingly, I find that the Town has met its burden under the Public Records Law and its Regulations of responding to the April 19, 2017 public records request in providing the responsive records on May 6, and in promising to provide the preliminary plan and a second copy ofrecords provided in 2016 within ten (10) business days. The Town should provide a copy of any response that accompanies the records to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. This administrative appeal is closed. If Michael and Rhonda Jusczak are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § IO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mark Hamel, P.E. Michael and Rhonda Jusczak