Joan Savoy v. Townsend, Town of - Town Clerk (SPR 20202187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2187 Kathleen M. Spofford, CMMC Town Clerk Town of Townsend 272 Main Street Townsend, MA 01469 Dear Ms. Spofford: I have received the petition of Joan Savoy appealing the response of the Town of Townsend (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 23, 2020, Ms. Savoy requested the following records pertaining “to the hiring of [a named] Conservation Agent [:] 1) … job offer letter 2) … job acceptance letter 3) The names of individuals on the Hiring Committee that oversaw [the] … hiring” The Town responded on October 30, 2020. Unsatisfied with the Town’s response, Ms. Savoy petitioned this office and SPR20/2187 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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

Kathleen M. Spofford SPR20/2187 Page 2 November 23, 2020 The Town’s October 30th response In its October 30th response, the Town produced one responsive record and stated it did not have any further responsive records. The Town stated, “… the Town’s duty to respond to records requests extends only to records that are in existence and in the custody of the Town at the time that the Town receives the request.” Please be advised, 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). 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). In a conversation between a Public Records Division staff attorney and a Town representative, the Town confirmed that it had no further records responsive to the request. Conclusion Whereas the Town does not possess additional records responsive to Ms. Savoy’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joan Savoy