Brendan Caine v. Registry of Deeds - Norfolk County (SPR 20192422)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2019 SPR19/2422 Marguerite Lee Assistant Register of Deeds Norfolk County Registry of Deeds 649 High Street Dedham, MA 02026 Dear Ms. Lee: I have received the petition of Brendan Caine appealing the response of the Norfolk County Registry of Deeds (Registry) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Caine requested "a digital copy of all historical deeds for Norfolk County." The Registry provided Mr. Caine with a response on October 22, 2019, withholding responsive records. Unsatisfied with the Registry's response, Mr. Caine petitioned this office and this appeal, SPR 19/2422, was opened as a result. Tlte 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, § 1O (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. Appeal In its October 22nd response, the Registry states that all of the information requested by Mr. Caine is available via its website, www.norfolkdeeds.org. The Registry further states: "as 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

Marguerite Lee SPR19/2422 Page 2 December 17 , 2019 confirmed by our IT Department, your request would involve the creation of new records rather than the accessing ofrecords already in existence and in our custody and conttol .... " No Duty to Create Records,· Extraction of Data 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 riot 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 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)(:f). Based on the Registry's response, I find it has not met its burden in replying to this request. In particular, the Registry has not shown that providing a response to the requests constitutes creation of a new record. See 950 C.M.R. 32.07(1)(:f). Specifically, it is unclear how responding to Mr. Caine's request does not constitute extraction of existing data, as contemplated in the Regulations. See 950 C.M.R. 32.07(1)(:f). The Registry must clarify this matter. Conclusion Accordingly, the Registry is to provide a response to Mr. Caine 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, ~~ Rebecca S. Murray Supervisor of Records cc: Brendan Caine