David Bixby v. Chatham, Town of (SPR 20200060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division ' Rebecca S, Murray Supervisor of Records January 16, 2020 SPR20/0060 Terry Whalen Town of Chatham 549 Main Street Chatham, MA 02633 Dear Mr. Whalen: I have received the petition of David Bixby appealing the response of the Town of Chatham (Town) to a request for public records. G. L. c. 66, § 1O A; also 950 C.M.R. 32.08(1). Specifically, Mr. Bixby requested a copy of several records within custody of the Town. As a result of the response, Mr. Bixby petitioned this office and this appeal, SPR20/0060, was opened. 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, § 1O A(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. Previous Determination This request was the subject of a previous determination. See SPRI 9/2497 Determination of the Supervisor of Records (December 27, 2019). In my December 27th Determination, I ordered the Town to provide a response to confirm whether the Town possess any additional responsive records. 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 • 1

Terry Whalen SPR20/0060 Page2 January 16, 2020 Current appeal The Town's January 10117 Response The Town responded to Mr. Bixby on January 10, 2020 stating the "Town/A irport Commission does not possess additional records responsive to Mr. Bixby's request." Subsequent to an intervention by a staff member of the Public Records Division, I learned that no "paper list or spreadsheet/local database of based aircraft is maintained by the Town/A irport Commission and therefore [the Town] does not possess a based aircraft list responsive to the request under Public Records Law;" The Town directed the requestor to the Federal Aviation Administration (FAA) database. Conclusion Under the Public Records Law, the Town is not required to create a list of records or any record in response to a public records request. Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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, § 10( a)(ii). Accordingly, I will consider this appeal closed. Sincerely, Rebecca-S. Murray Supervisor of Records cc: David Bixby.