Russell Seelig v. Department of Revenue (SPR 20180635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2018 SPRlS/635 Roger H. Randall, Esq. Tax Counsel Department of Revenue 100 Cambridge Street, i 11 floor Boston, MA 02114-2582 Dear Attorney Randall: I have received the petition of Russell Seelig appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c: 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Seelig requested: All documents created in the past 12 months related to DOR's position on the enactment of penalties against those investment property owners who do not respond to Information Request 38D's sent out by local assessors, such as, but not limited to, department notes, letter and e-mails. While the Department referenced Information Request 38D's in a letter dated April 11, 2018, it was unclear to Mr. Seelig whether that letter was intended to respond to this request, or a similar one. Consequently, Mr. Seelig petitioned this office, and this appeal was opened as a result. The Department's April 1 fh response In a response dated April 11, 2018, the Department indicates that it "objects" to Mr. Seelig's request for "so-called 38D's." The Department claims that these records are "Form-of List personal-property returns under chapter 59, section 29 and 32. Those items, if they exist, are not public records." It is unclear if this response is intended to address Mr. Seelig's above request. It is my understanding that a Public Records Division staff member contacted you regarding this appeal, and you provided a supplemental response. 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

Roger H. Randall, Esq. SPR18/635 Page 2 May 10, 2018 The Department's May sth response In a response dated May 8, 2018, the Department clarifies that they do not have records responsive to Mr. Seelig's request. Specifically, the response states: "I inquired internally. The Department of Revenue does not have any such documents." Use of custodian's superior knowledge In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in his custody to assist the requestor in obtaining the desired information. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii). The Department is not required to create a list of records or any record in response to a public records request. A public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The Department has confirmed that it is in possession of no records responsive to Mr. Seelig's request and is under no obligation to create a record in response to a public records request. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Russell Seelig