Eileen W. Mooney v. Great Barrington, Town of - Office of the Town Clerk (SPR 20192146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2019 SPR19/2146 Jennifer Messina Office of the Town Clerk 334 Main Street Great Barrington, MA 01230 Dear Jennifer Messina: I have received the petition of Eileen W. Mooney appealing the response of the Town of Great Barrington (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on October 11, 2019 Ms. Mooney requested, "emails, reports of telephone conversations and any other information relating to why town officials feel a vacancy on the Great Barrington Housing Authority's three facilities has elected a representative." 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. Current Appeal In an email to Ms. Mooney dated October 15, 2019, Town manager, Mark Ruhenski states, "I do not have any notes from those meetings to provide." Unsatisfied with this response, Mr. Mooney petitioned this office and as a result SPR19/2146 was opened. 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

Jennifer Messina SPR19/2146 Page 2 October 23, 2019 In a letter to this office dated October 16, 2019 Ms. Mooney states, "[t]his is an appeal of the failure of Mark Pruhenski, Great Barrington town manager, to provide me with notes of his conversations with state Department of Housing and Community Development officials and others that led him to feel a vacancy on the Great Barrington Housing Authority can be filled by any town resident." She further notes, "I wrote Mr. Pruhenski to request notes of his conversations. He said they are not available. He also said he plans to provide an executive summary. I feel that ifhe can include the information he was given in an executive summary, he can include it in a memo to me." No Duty to Create Records Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Please be advised, 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, § IO(a)(ii). Conclusion Whereas the Town does not possess records responsive to Ms. Mooney'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 C?f Records cc: Eileen W. Mooney Mark Pruhenski ·