Elizabeth Garthe v. Marblehead, Town of (SPR 20210334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2021 SPR21/0334 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 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). On February 2, 2021, Ms. Garthe requested the following records, “… related to the [Notice of Intent] NOI statement referenced [] for August 1, 2020 through February 1, 2021 inclusive: 1. The ‘Request for Abutters list’ document as initialed and provided by the Marblehead Assessors Department to the Engineering Department related to the [] NOI. . . . 2. The list of abutters provided by the Marblehead Engineering Department to PLDE as referenced in the [] NOI. 3. Any list of abutters provided by any Town of Marblehead Department, employee or agent to the Glover Landing Condominium Trust, Zero Brackett Place, Marblehead MA or agents acting on its behalf, related to the [] NOI.” On February 8, 2021, the Town responded. Unsatisfied with the Town’s response, Ms. Garthe appealed, and SPR21/0334 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 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 SPR21/0334 Page 2 February 24, 2021 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 8th response In its February 8, 2021 response, the Town stated, “… attached (via email) the following documents responsive to your FOIA request dated February 2, 2021 (received February 3, 2021) Abutters list information that was attached to the NOI for O Brackett Place, Assessor's parcel id 131-1. The request for abutters list is generated by the applicant and submitted to the Conservation Commission. The Cons Com submits the request to the Assessor’s office. The request for abutters list is returned to the applicant attached to the abutters list. The Engineering Department/Conservation Commission does not keep a record of the request for abutters list.” 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 Ms. Garthe’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Garthe is not satisfied with the resolution of this administrative appeal, she 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: Elizabeth Garthe Nicholas Mango