James Herms v. Lexington, Town of (SPR 20210890)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2020 SPR21/0890 Kelley E. Axtell, MBA Deputy Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Dear Ms. Axtell: I have received the petition of James Herms appealing the response of the Town of Lexington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 9, 2020, Mr. Herms requested the following records, “COVID-19 case numbers and descriptions for employees at MIT’s Lexington campus. 1. Case numbers: Staff, MIT Lincoln Laboratory. 2. Case descriptions, by testing date. Time periods of interest: March 5–July 22; July 23–present.” On December 29, 2020, Mr. Herms modified his request for records as follows: “COVID-19 case counts and descriptions for Lexington residents working (or studying) at MIT’s Lexington campus [for] [t]ime periods of interest: March 5–July 22; July 23–present.” Previous appeal This request was the subject of a previous appeal. See SPR2/2453 Determination of the Supervisor of Records (December 22, 2020). The Town responded on January 7, 2021. Unsatisfied with the response, Mr. Herms appealed and SPR21/0890 was opened as 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 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

Kelley E. Axtell, MBA SPR21/0890 Page 2 April 21, 2021 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 January 7, 2021 response The Town responded on January 7th and stated, “… there have been 757 confirmed cases of COVID among Lexington residents in total. The Town does not have within its possession, custody, or control any document or data that specifies how many of those cases involve individuals working (or studying) at MIT’s Lexington campus.” Subsequently, Town counsel asserted, “… what the Town does not have is data that allows the Town to segregate out cases working or studying at MIT’s Lexington campus and thus it does not have a data set containing ‘descriptions’ of those individuals or their cases either. That data, again, would be in DPH's possession, custody, or control, to the extent it exists at all.” Under the Public Records Law, there is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Based on a communication between a Public Records Division staff attorney and a City representative, it is my understanding that no additional records exist responsive to the request. Order Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: James Herms

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