Craig Swinson v. Richmond School District (SPR 20200487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 20, 2020 SPR20/0487 Fernand Dupere, Esq. Dupere Law Offices 94 North Elm Street, Suite 307 Westfield, MA 01085 Dear Attorney Dupere: I have received the petition of Craig Swinson appealing the response of the Richmond Consolidated School District (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 10, 2020, Mr. Swinson requested: "any forms titled disclosure by a non-elected employee of financial interest and determination by appointing authority as required by G. L.c. 268A, § 19, as filled by Peter Dillon." Prior appeal The requested record was the subject of prior appeal for non-response. See SPR20/0388 Determination of the Supervisor of Records (Supervisor) (March 6, 2020). As a result of the School's response, I closed appeal SPR20/0388. After receiving a March 6, 2020 response from Kimberly M. Roche, Esq. of Dupere Law Offices on behalf of the School, Mr. Swinson appealed again, and the current appeal was opened. In a March 6th email to Attorney Roche, with a copy to the Public Records Divison, Mr. Swinson stated, "[c ]ould you please provide the date and time that Peter Dillon contacted the [E]thics [C]omission. As the Ethics Commission is required by law to keep records of those discussions, time, date, topic, name ofrequester, advice given, I request that Peter Dillon release the information as he has made the claim he placed the call." In a March 16, 2020 response to a Senior Attorney in the Public Records Division, you provided Mr. Swinson with the time, date, topic, requestor and advice given from Lauren Puca, Esq. of the Ethics Commission. Your response states, "[Attorney Puca] stated that [Mr. Dillon] was not required to file a Conflict of Interest form with the Town of Richmond since [Mr. Dillon] is a contracted service and not an employee of the Town of Richmond. The filing of a 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

Fernand Dupere, Esq. SPR20/0487 Page 2 March 20, 2020 [C]onflict of [I]nterest would be with the Berkshire Hills Regional School District, Mr. Dillon's employer." Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). The School has met its duty under the Public Records Law of identifying any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)( )(2). C By email on March 19, 2020, Mr. Dillon provided Mr. Swinson with a copy of the Conflict oflnterest form filed on February 27, 2020 with the Ethics Commission, in his capacity as a contracted Superintendent from the Berkshire Hills Regional School District. Conclusion Accordingly, whereas Mr. Swinson has received the record and information he requested, I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Peter Dillon Mr. Craig Swinson