Andrew Spearing v. Bedford, Town of - Town Clerk (SPR 20192222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2019 SPR19/2222 Doreen Tremblay Town Clerk 10 Mudge Way Bedford, MA 01730 Dear Ms. Tremblay: I have received the petition of Andrew Spearing appealing the response of the Town of Bedford (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Spearing requested information regarding residential properties with delinquent water billing accounts or zero consumption for a certain period of time. The Town responded on October 31, 2019 denying access to the requested records on the grounds that production of the requested information would require creation of a new record. Unsatisfied with this response, Mr. Spearing petitioned this office and this appeal, SPR 19/2222, was opened as a result. Current Appeal In his appeal petition, Mr. Spearing states that "it is implausible that the town does not keep [any] readily-available records compliant with the request." Mr. Spearing continues: "[h]ow can it be that the town has no way of figuring out, within a reasonable time frame, who hasn't paid their water/sewer bills, or who hasn't consumed any W[:}ter?" No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A( d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). However, under the Public Records Law, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Doreen Tremblay SPR19/2222 Page2 November 18, 2019 the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data." 950 C.M.R. 32.07(1)(£). In its October 3 l81 response, the Town states that " [s ]ince this report would have to be created by our vendor merging two databases, we are not required to provide this information." Based on the Town's response, it is unclear whether it possesses records responsive to Mr. Spearing's request. It is also unclear what the Town means by "merging two databases." The Town must clarify these matters. Fmiher, under the Public Records Law, records custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). A records access officer may "suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably." G. L. c. 66, §lO(b)(vii). This office encourages the parties to communicate further to develop.a plan to provide Mr. Spearing with the information he seeks. Conclusion Accordingly, the Department is ordered to provide a response to Mr. Spearing consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, ~r~ Supervisor of Records cc: Andrew Spearing