Scott Moore v. South Hadley, Town of - Town Clerk (SPR 20210687)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0687 Carlene Hamlin Town Clerk Town of South Hadley Town Hall 116 Main Street, Room 108 South Hadley, MA 01075 Dear Ms. Hamlin: I have received the petition of Scott Moore appealing the response of the Town of South Hadley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 20, 2021, Mr. Moore requested “the list of registered Republicans for South Hadley.” The Town provided a response on February 23, 2021. Unsatisfied with the Town’s response, Mr. Moore petitioned this office and this appeal, SPR21/0687, 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

Carlene Hamlin SPR21/0687 Page 2 April 1, 2021 Current Appeal In its February 23, 2021 response, the Town provided a document to Mr. Moore regarding his request. In his March 19, 2021 appeal to this office, Mr. Moore claimed the “document is very difficult to read and is not what was requested.” It is unclear if the Town possesses records responsive to the request. Specifically, the Town must clarify whether it possesses the requested records. 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). Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Mr. Moore’s appeal, I find the Town must clarify whether the responsive records can be provided in a machine-readable format. Further, 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. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, the Town is ordered to provide Mr. Moore with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott Moore