Julie Dowen v. Div. of Capital Asset Management (SPR 20211724)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1724 Christopher Guerin, Esq. Special Counsel Division of Capital Asset Management & Maintenance One Ashburton Place Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Julie Dowen appealing the response of the Division of Capital Asset Management & Maintenance (DCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 21, 2021, Ms. Dowen requested “…a list of properties from January 1, 2015 through TODAY - January 21, 2021- that were state resources and have been sold other parties…the list of properties that were given authorizations and agreements to sell by the Division of Capital Asset Management and Maintenance (DCAMM).” On July 6, 2021, DCAMM provided a response. Unsatisfied with DCAMM’s response, Ms. Dowen petitioned this office and this appeal, SPR21/1724, 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

Christopher Guerin, Esq. SPR21/1724 Page 2 July 26, 2021 DCAMM’s July 6th response On July 6th, DCAMM provided a response providing “a record responsive to your request with respect to properties sold during the identified timeframe which we hope addresses your inquiry. With respect to a list of properties given authorizations and agreements to sell by DCAMM, we are unclear on this request and require clarity with respect to the specific records you seek and the applicable timeframes you are contemplating.” Current Appeal In her appeal, Ms. Dowen stated that there were additional records responsive to her request. In a phone conversation on July 23, 2021, DCAMM confirmed that there are no additional records responsive to Ms. Dowen’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 DCAMM does not possess additional records responsive to Ms. Dowen request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. This office encourages Ms. Dowen and DCAMM to continue to communicate to facilitate providing any records that might be of interest to Ms. Dowen. Sincerely, Rebecca S. Murray Supervisor of Records cc: Julie Dowen