Allen Waller v. Marblehead, Town of (SPR 20190159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2019 SPR19/0159 Kyle Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Mr. Wiley: I have received the petition of Allen Waller appealing the response of the Town of Marblehead (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 26, 2018, Mr. Waller requested the court and docket number for a specific case mentioned at a 2015 Town Meeting in Marblehead. Previous appeal This request was the subject of a previous appeal. See SPR19/0122 Determination of the Supervisor of Records (January 25, 2019). I closed SPR19/0122 based on the Town's provision of a response on January 22, 2019. Unsatisfied with the Town's response, Mr. Waller petitioned this office and this appeal, SPR19/0159, 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, § lO(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

Kyle Wiley SPR19/0159 Page 2 February 7, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 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 Town's January 22nd response In its January 22, 2019 response, the Town claims that" ... there are no records responsive to Mr. Waller's request." The Town explains that it" ... hired an engineer, Kleinfelder, many years ago to establish the boundaries of an old landfill that needed to be contained and closed. The contractor, Maverick Construction, was hired to perform the actual work. [The Town] believe[s] the project actually got underway sometime in 2014." The Town further states that "[i]n 2015, [it] was embroiled in conflict with Kleinfelder and Maverick" and this led to the Town's participation "in three separate mediations in hopes of avoiding litigation. The Town is currently under an agreement with Kleinfelder on the project tolling the statute of limitations for the [T]own's claims against Kleinfelder on this project." The Town claims that it "was served in December 2017 by Maverick hired to finish the landfill closure project." The Town provided the docket number for the 2017 litigation. In his petition for appeal, Mr. Waller claims that his "request regarded an exchange which occurred in May 2015 regarding SEA/Kleinfelder the engineers on the Marblehead Landfill Closure project. ... The Town's response cites a case filed in December 2017 ... by Maverick Construction Management[.] As the response offers a case filed 1 1/2 years after the date of the exchange and does not concern the parties at question, we reiterate our request for the case for which Town Counsel stated that the Town 'was in the middle of litigation' on as obviously the case cited had not commenced." 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 information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Where the Town has provided the record responsive to the 2017 litigation and has confirmed that" ... there are no records responsive to Mr. Waller's request," I find that Mr. Waller's appeal related to this request has been resolved. Conclusion Accordingly, I will consider this administrative appeal closed.

Kyle Wiley SPR19/0159 Page 3 February 7, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen Waller