Laurel Collins v. Newton, City of - Law Department (SPR 20181074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3,201 8 SPRl811074 Jonah Temple, Esq. City of Newton - Law Department 1000, Commonwealth Avenue Newton, MA 02459 Dear Attorney Temple: I have received the petition of Laurel Collins appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 26,201 8, Ms. Collins requested "any and all communications between the City . . . (including [an identified mayor]), regarding 1) the land acquisition of Mount Ida College [(MIC)] by UMASS including UMASS Amherst and the UMASS President's Office, 2) the discussion of the proposed merger between Lasell College and [MIC], and 3) communications regarding the above with the Chamber of Commerce regarding both above- referenced negotiations and also 'Carlson Woods' and 'Save Carlson Woods."' Ms. Collins mentioned that "[tlhese communications include written documents, emails, all appraisals of [MIC] properties, and notes on phone calls . . ." from January 1,2014 - present. The City provided responsive records on June 28,2018; July 5,2018; and July 19,2018. The City subsequently provided its final response on July 20,2018. Contending that she has not received "all responsive records," Ms. Collins petitioned this office and this appeal, SPR1811074, 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, 5 10A(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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,5 1 1 (1 995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Jonah Temple, Esq. Page 2 August 3,201 8 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, fj lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's July 19" and July 2othr esponses In its July 19,2018 response, the City indicated that it worked together with Ms. Collins to come up with an agreed modification to Ms. Collins' original request that reduced its scope. After modification of the request, the City produced responsive documents in response to the revised scope of Ms. Collins' original request on June 28,201 8. The City indicated that these documents included 279 emails and 6 pages of the Mayor's handwritten notices that were responsive to Ms. Collin's modified request. The City further indicated that on July 3,2018 , Ms. Collins requested an expansion of the modified request that was previously agreed to. The City claimed that because this enlarged the scope of Ms. Collins' modified request, it treated the request as a new request. The City noted that it "produced responsive records from its Assessing Department and Conservation Commission on July 5,2018." The City also claimed it attached "the second batch of documents" to its July 19" response and indicated that its "IT Department has been running the required email searches using the expanded search terms and timeframe" and would provide any additional responsive emails after the documents have been reviewed. The City noted that it "does not possess records concerning [MIC's] proposed merger with Lasell College (announced February 25,201 8) and [MIC's] sale to UMass-Amherst (announced April 6,2018 ) that predate those public announcements by more than one day because such records do not exist." In its July 20,201 8 response, the City noted that it ". . . has now completed its review of all potentially responsive documents and no additional responsive documents were identified. Thus the City has finalized its review of [Ms. Collins'] request for public records. A search of all public records in the custody and control of the City reveals that the previously produced documents are responsive to your request and that no other responsive documents exit. . . ." The City also noted that "[iln further clarification, the City's response included all responsive documents dating back to January 1,2014. This confirms that all documents responsive to the time frame stated in your original request have been produced. . . ." No duty to create records In a telephone conversation with the City on August 1,2018 , the City further confirms that it does not possess additional records from 2014 to 2016. Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, 5 6A(d). 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 of records at the time of the request. See G.

Jonah Temple, Esq. Page 3 August 3,20 18 L. c. 66, $ 1O (a)(ii). Accordingly, whereas the City confirms it has no additional records in its possession, I find that Ms. Collins' appeal relating to this matter is resolved. Conclusion Accordingly, whereas the City explains that "no other responsive records exist" and it is under no duty to create such records, I will consider this administrative appeal closed. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Laurel Collins