Allen Waller v. Marblehead, Town of (SPR 20210052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 21, 2021 SPR21/0052 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 Allen D. Waller 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). On December 8, 2020, Mr. Waller requested “… clarification on accounting for the landfill closure expenditures [and] …a clearer accounting for the total cost and funding for the landfill project.” Unsatisfied with the Town’s responses, Mr. Waller petitioned this office and SPR21/0052 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). The Town’s December 22nd response In its December 22, 2020 response, the Town stated it “does not have any additional documents responsive to [the] request ...” 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 SPR21/0052 Page 2 January 21, 2021 No Duty to Create Records In a conversation between a Public Records Division staff attorney and a Town representative, the Town confirmed that it has no further records responsive to 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Whereas the Town does not possess any additional records responsive to Mr. Waller’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Waller is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen D. Waller