Nicholas Mango v. Marblehead, Town of (SPR 20210323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2021 SPR21/0323 Kyle Wiley Records Access Officer Town of Marblehead 188 Washington Street Abbot Hall Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Nicholas Mango 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 January 24, 2021, Mr. Mango requested the following documents: “1. A copy of the attached January 13, 2021 revocation letter on Official Town of Marblehead Building Commissioner Letterhead. . . . 2. … proof of such service, which may include, but not be limited to: the date and signature of the individual at GLCT who signed for the letter when it was '’physically served’, or signed proof of delivery by US Mail, UPS, FedEx or other courier services, or proof of delivery by constable or other method. 3. … the materials proving the January 13, 2021 revocation letter was legally served on GLCT … 4. … all materials that show the Town delivered the January 13, 2021 letter to all individuals with legal control of the property being modified under Permit B-20-21.” The Town provided a response on February 1, 2021. Unsatisfied with the Town’s response, Mr. Mango appealed, and SPR21/0323 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). 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 SPR21/0323 Page 2 February 23, 2021 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). The Town’s February 1st response In its February 1, 2021 response, the Town stated, “… attached (via email) [are] the following documents responsive to your FOIA request dated January 2[4], 2021: A copy of the letter that was hand delivered by . . . Local Inspector, to Sue [an identified individual] at the office of Glover Landing Condominiums . . ., on Thursday, January 14, 2021.” In a conversation between a Public Records Division staff attorney and a Town representative, the Town stated that it had no further records responsive to the request. No Duty to Create Records 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). Conclusion Whereas the Town does not possess any additional records responsive to Mr. Mango’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Mango 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: Nicholas Mango Elizabeth Garthe