Mary Dormer v. Carver, Town of - Town Clerk (SPR 20210594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2021 SPR21/0594 Cara L. Dahill Town Clerk/Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Mary Dormer appealing the response of Town of Carver (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 1, 2021, Ms. Dormer requested “…the expiration dates on all the food in the freezers…an inventory for all non-perishable (or dry food) in any pantry on the premises, with the expiration date on all products, as well as an inventory, including expiration dates of all food in any and all refrigerator on the premises…all documentation on how the COA handles the loss of power of any freezer, refrigerator to ensure the safety of the frozen foods.” On March 10, 2021, the Town responded and provided responsive records. Unsatisfied with the response, Ms. Dormer petitioned this office and SPR21/0594 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. 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

Cara L. Dahill SPR21/0594 Page 2 March 25, 2021 The Town’s March 10th response On March 10th, the Town stated “[t]he documentation available pursuant to this request is in the form of the Board of Health inspection report attached which covers all food safety and storage requirements of the Council of Aging.” Current Appeal In her current appeal Ms. Dormer indicated that the Town did not provide all responsive records. In an email dated March 23, 2021, the Town confirmed that there are no additional responsive records to Ms. Dormer’s request. 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 Where the Town has provided the requested records, does not possess any additional responsive records to Ms. Dormer’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Ms. Dormer 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, § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer