Timothy Burke v. Dennis, Town of (SPR 20181043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31, 2018 SPRlS/1043 Theresa T. Bunce Town of Dennis 458 Main Street Dennis, MA 02660-1614 Dear Ms. Bunce: I have received the petition of Attorney Timothy Burke appealing the response of the Town of Dennis (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 29, 2018, Attorney Burke requested various categories ofrecords related to a complaint for illegal dumping at an identified address. Previous appeal This request was the subject of a previous appeal. See SPRl 8/904 Determination of the Supervisor of Records (June 25, 2018). I closed SPR18/904 upon notification that the Town had provided a response to Attorney Burke on June 21, 2018. Unsatisfied with the Town's June 21st response, Attorney Burke petitioned this office and this appeal, SPR18/1043, 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, § lOA(d); 950 C.M.R. 32.03(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). 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, § IO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. 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

Theresa T. Bunce SPR18/1043 Page 2 July 31, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's response; no duty to create records Attorney Burke's May 29th request consisted of eight categories of records. In the Town's June 21st response, it indicates that "[f]ollowing a careful review of [Attorney Burke's] request, attached please find documents responsive to Requests Nos. 1, 6, and 7 (and 8)." The Town indicates that "[i]t appears that Request Nos. 7 and 8 are duplicate requests." The Town states that it "is unaware of any other documents in its custody that are responsive to any of [A ttorney Burke's] request." While this appeal was pending the Town provided another response on July 23, 2018. In its July 23rd response, the Town indicates that it "undertook a diligent search of its records in response to Mr. Burke's public records request and the Town produced all records that it has in its custody or control responsive to ... Mr. Burke's request." Under the Public Records Law, the Town is not required to create a 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, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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. 4, § 7(26). Whereas the Town explains it completed a diligent search and has produced all the responsive records in its possession, I find this appeal is resolved. Conclusion Accordingly, whereas the Town explained that it has "produced all records that it has in its custody or control responsive to ... Mr. Burke's request," and it is under no duty to create additional records responsive to this request, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Burke, Esq. Melissa P. McCarthy, Esq.