Allen Waller v. Marblehead, Town of (SPR 20181310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 12,201 8 SPR1811310 Kyle Wiley City of Marblehead Abbot Hall 18 8 Washington Street Marblehead, MA 0 1945 Dear Mr. Wiley: I have received the petition of Allen Waller appealing the response of the City of Marblehead (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Waller requested "Affidavits of Compliance with G.L. c.44 53 1C for all change orders executed for the captioned project." Current Appeal In the City's August 28&r esponse you write, "there are no documents in the Town's possession that are responsive to your request." Unsatisfied with the City's response, Mr. Waller petitioned this office and as a result SPRl8113 10 was opened. No Duty to Create Records Please note that 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. L. c. 66, 5 1O (a)(ii). 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 1O (b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (19 95) (custodian has the burden of establishing the applicability of an exemption). 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

Kyle Wiley Page 2 September 12,2018 Conclusion It is my understanding that you spoke with a staff member of the Public Records Division and confirmed that there are no further records responsive to Mr. Waller's request. Whereas the City does not possess records responsive to Mr. Waller's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen Waller