Frank Wood v. Framingham, City of - Finance Division (SPR 20210246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2021 SPR21/0246 Jennifer A. Pratt Records Access Officer Finance Division City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Pratt: I have received the petition of Mr. Frank Wood appealing the response of the City of Framingham Finance Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2021, Mr. Wood made two requests for certain email communications. On February 2, 2021, the Division provided a response. Unsatisfied with the Division’s response, Mr. Wood petitioned this office and this appeal, SPR21/0246, 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. The Division’s February 2nd response On February 2, 2021, the Division provided Mr. Wood with a response stating that there 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

Jennifer A. Pratt SPR21/0246 Page 2 February 4, 2021 were “no responsive records.” Current Appeal In his appeal, Mr. Wood stated, “[i]n under 12 hours the two FOIA requests have come back with ‘no responsive documents’. Based on Framingham’s history of taking all the time allowed for FOIA requests, the 12 hour overnight turnaround shows that these FOIA cases were NOT WORKED.” In an email dated February 3, 2021, the Division confirmed that there are no responsive records to Mr. Wood’s requests. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 Whereas the Division does not possess any records responsive to Mr. Wood’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Wood is not satisfied with the resolution 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Frank Wood