Frank Wood v. Framingham, City of - City Council Department (SPR 20211626)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2021 SPR21/1626 Todd Palmer Super RAO City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Frank Wood appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 21, 2021, Mr. Wood requested “…all emails sent by [named person] where there was an entry in the BCC field. Dates to search 1/1/2021-5/6/2021.” On July 1, 2021, the City responded indicating there were no records responsive to the request. Unsatisfied with the response, Mr. Wood petitioned this office and SPR21/1626 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

Todd Palmer SPR21/1626 Page 2 July 16, 2021 The City’s July 1st response In its July 1st response the City states “… [n]o records relating to this request were received from [named person].” Current Appeal In his appeal petition, Mr. Wood contends “…It is now the policy of City Council for individual councilors [sic] to NOT BE responsible for searching their own email addresses and choosing what emails to return. Because we believe that there are documents responsive to our request, and because we do not wish to resubmit our request only to wait the full 10 days, and on that 10th day be extended to the full 25 days, we are appealing your response of no documents to the state.” 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 City has confirmed it does not possesses any records responsive to Mr. Wood’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Wood 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, § 10(b Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood