Robert Jackson v. Tyngsborough, Town of (SPR 20210379)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2021 SPR21/0379 Joanne Shifres Town Clerk Town of Tyngsborough Town Hall 25 Bryants Lane Tyngsborough, MA 01879 Dear Ms. Shifres: I have received the petition of Robert Jackson appealing the response of the Town of Tyngsborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2021, Mr. Jackson requested numerous documents from the Town. Claiming to not yet have received a response, Mr. Jackson petitioned this office and SPR21/0379 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(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 advised on February 22nd that there are no responsive records to the public records request. Please be advised, under the Public Records Law the Town is not required to create a 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

Joanne Shifres SPR21/0379 Page 2 February 23, 2021 record in response to a public records request. See G. L. c. 66, §6A(d); 32 Op. Atty 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 Town does not possess records responsive to Mr. Jackson’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Jackson