Elizabeth Garthe v. Marblehead, Town of (SPR 20202491)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 29, 2020 SPR20/2491 Kyle Wiley Records Access Officer Town of Marblehead Abbott Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Elizabeth Garthe appealing the response of the Town of Marblehead (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 9, 2020, Ms. Garthe requested “copy of a single ‘Written Analysis’ (The Analysis) that the State of Massachusetts ordered the Town to complete within 30 days of August 21, 2019” for an identified property. Previous Appeals This request was the subject of a previous appeal. See SPR20/1482 Determination of the Supervisor of Records (September 10, 2020). Unsatisfied with the Town’s response, Ms. Garthe petitioned this office and SPR20/2491 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). 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. 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

Kyle Wiley SPR20/2491 Page 2 December 29, 2020 The Town’s Responses In its August 15th response, the Town stated, “[t]he Town is not in possession of any responsive records to your appeal. Please see attached letter from counsel.” In a response dated September 10, 2020, Adam J. Costa counsel for the Town stated, “… Ms. Garthe …is mistaken and [her request] misrepresents, intentionally or unintentionally what was ordered by the State Building Code Appeals Board (BCAB)…. Garthe is a co-Plaintiff in multiple lawsuits brought against the Town and the Board of Governors of the Glover Landing Condominium regarding the fire escape system …” Attorney Costa further asserts that, “[t]he BCAB did not order … the Town to perform any written analysis whatsoever…” Attorney Costa concluded by stating, “… [t]he Town cannot be required to create a record that does not exist.” In a response dated August 26th, the Town responded to Ms. Garthe and sent additional documents to Ms. Garthe which she claimed were nonresponsive. 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). The Town has confirmed that it has no further records responsive to the request. Conclusion Whereas the Town does not possess additional records responsive to Ms. Garthe’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: Elizabeth Garthe