Edward P. Sinni, Jr. v. Concord, Town of - Building Department (SPR 20210987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2020 SPR21/0987 Raymond Matte Town of Concord, Building Department 141 Keyes Road Concord, MA 01742 Dear Mr. Matte: I have received the petition of Edward Sinni appealing the response of the Town of Concord (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2021, Mr. Sinni requested the following records, “…any document that would be used by installers/contractors etc. and building department personnel when installing and approving per building code an installation of any type including a fire escape as described above. That document would include all measurements, tolerances and clearances required to be met for approval of such a fire escape or any type of installation or building project.” Previous appeal This request was the subject of a previous appeal. See SPR20/2510 Determination of the Supervisor of Records (December 30, 2020). On the request of Mr. Sinni, a reconsideration was opened. See SPR20/2510 Determination of the Supervisor of Records (February 1, 2021). In my determination, I referenced the Town’s confirmation that it did not possess records responsive to the request. The Town responded on April 26, 2021. Unsatisfied with the response, Mr. Sinni appealed and SPR21/0987 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). 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

Raymond Matte SPR21/0987 Page 2 April 28, 2021 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’s April 26th response In the Town’s April 26, 2021 response, it asserted, “… [the Town] do[es] not have any documentation that relates to the installation / tolerances for [Mr. Sinni’s] fire escape.” 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 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). Based on a conversation between a staff member of the Public Records Division and a Town representative, the Town confirmed that no records responsive to the request exist. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Sinni 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Edward Sinni Kate Hodges, Deputy Town Manager