Paul DeMeo v. Gardner, City of - City Clerk (SPR 20200852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2020 SPR20/0852 Alan L. Agnelli City Clerk City of Gardner 95 Pleasant Street Gardner, MA 01440 Dear Mr. Agnelli: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 8, 2020, Mr. DeMeo requested communications between the City Law Department, the attorney for the City’s law office and the City Council. Previous appeals This request was the subject of a previous appeals. See SPR20/0122 Determination of the Supervisor of Records (January 31, 2020); SPR20/0291 Determination of the Supervisor of Records (February 27, 2020); SPR20/0446 Determination of the Supervisor of Records (March 13, 2020); SPR20/0686 Determination of the Supervisor (May 6, 2020). Unsatisfied with the City's response, Mr. DeMeo petitioned this office and this appeal SPR20/0852 was opened as a result. 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, § 10A(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, § 10(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). 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

Alan L. Agnelli SPR20/0852 Page 2 June 10, 2020 Current Appeal In his current appeal, Mr. DeMeo stated, “… I have attached a record showing ‘no content’ in an e-mail dated … March 7th, 2020 which [was] sent in [the] original response on 4/16/2020. Where is the ‘public records’ content of this e-mail …” The May 24th response by Attorney John M. Flick confirmed that the City has no additional records and provided supplemental records that had been requested. Attorney Flick indicated “[t]hese records consist of responsive public records dated between the date of the original response of 4/16/20 and 4/30/20…the records attached are complete and have not been redacted. The page … reference[d] does not and did not contain any text. The only item on that e-mail was an attachment which is included in the documents produced.” Under the Public Records Law, 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 duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Based on a conversation between a Public Records Division staff attorney and a City representative, it is my understanding that no additional records exist responsive to the request. Order Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Paul DeMeo