Deborah Brown v. Brookline, Town of (SPR 20210388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2021 SPR21/0388 Joslin Murphy, Esq. Town Counsel Town of Brookline 333 Washington Street, Room 208 Brookline, MA 02445 Dear Attorney Murphy: I have received the petition of Deborah Brown, Esq. appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 8, 2020, Attorney Brown requested the following record, “… any report prepared by Hogan Lovells in connection with its June 2019 engagement by the Town of Brookline …” On February 12, 2021, the Town responded. Unsatisfied with the Town’s response, Attorney Brown appealed, and SPR21/0388 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). 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

Joslin Murphy, Esq. SPR21/0388 Page 2 March 1, 2021 The Town’s February 12th response In its February 12th response, the Town stated, “…there is no such report in the possession or custody of the Town.” In a conversation between a Public Records Division staff attorney and a Town representative, the Town confirmed that it had no 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 records responsive to Attorney Brown’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Brown 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: Deborah Brown Patrick J. Ward