Robert Rosbury v. Gardner, City of (SPR 20202509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2020 SPR20/2509 Alan Agnelli City Clerk City of Gardner 95 Pleasant Street, Room 121 Gardner, MA 01440 Dear Mr. Agnelli: I have received the petition of Robert Rosbury 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, Mr. Rosbury requested the “2016-2020 public shade tree hearing minutes and shade tree list for same years.” The City provided a response to Mr. Rosbury, producing tree lists for the years of 2018- 2020, and indicating that it does not possess additional responsive records. Unsatisfied with the City’s response, Mr. Rosbury petitioned this office and this appeal, SPR20/2509, 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) (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

Alan Agnelli SPR20/2509 Page 2 December 30, 2020 Current Appeal In his appeal petition, Mr. Rosbury indicates that he is seeking additional records beyond the tree lists provided by the City on December 2, 2020. 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). In a December 3, 2020 email to Mr. Rosbury, the City states that it “only started recording [tree] lists in 2018,” and that it “do[es] not have any minutes from the meetings as it is not the responsibility of the DPW to keep them.” In a phone conversation with a staff attorney of the Public Records Division, a representative from the City Department of Public Works confirmed that the City does not keep minutes of the shade tree meetings. Accordingly, whereas the City has confirmed that it does not possess additional responsive records, I will consider this administrative appeal closed. If Mr. Rosbury 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: Robert Rosbury