Matthew Haney v. Mashpee Town of - Police Department (SPR 20201519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1519 Rodney C. Collins Town Manager Town of Mashpee 16 Great Neck Road North Mashpee, MA 02649 Dear Mr. Collins: I have received the petition of Matthew Haney appealing the response of the Town of Mashpee (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Haney requested several categories records relating to the ‘Intergovernmental Agreement By and between the Mashpee Wampanoag Tribe and the Town of Mashpee, Massachusetts April 22, 2008.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/1103 Determination of the Supervisor of Records (July 21, 2020). I closed my July 21st determination on the understanding that the Town would provide a supplemental response to Mr. Haney’s request. The Town provided a fee estimate for the production of records, estimating a cost of $200. Mr. Haney paid the fee, and the Town provided 341 pages of responsive records on August 27, 2020. Alleging that the Town possesses additional responsive records that it has not produced, Mr. Haney petitioned this office and this appeal, SPR 20/1519, 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). 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

Rodney Collins SPR20/1519 Page 2 September 14, 2020 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). 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. Current Appeal In his appeal petition, Mr. Haney states that he believes that the Town possesses additional responsive records, and indicates that he has placed a stop payment on the check with which he paid the Town’s fee estimate. In emails dated August 28, 2020 and September 2, 2020, the Town confirms that it has produced all responsive records in its possession. No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. 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). Conclusion Accordingly, whereas the Town has stated that it has produced all responsive records in its possession, I will consider this administrative appeal closed. If Mr. Haney is not satisfied with the result of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Haney