Jamal Brathwaite v. Brockton, City of - Planning and Economic Development Department (SPR 20211738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 28, 2021 SPR21/1738 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Jamal Brathwaite appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2021, Mr. Brathwaite requested the following: 1. … all documents and records pertaining to estimates for the remaining work site that served as the basis for determining the amount of surety required by the City of Brockton to release the remaining lots at [named location] at the May 4, 2021, Planning Board meeting 2. …the May 4, 2021, Planning Board meeting minutes. 3. …all records that the City of Brockton Planning Board or Designee has inspected and verified that all stormwater management work has been completed as required. On June 29, 2021, the City responded. Unsatisfied with the City’s response, Mr. Brathwaite petitioned this office and this appeal, SPR21/1738, 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 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

Allison M. Cogliano, Esq. SPR21/1738 Page 2 July 28, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s June 29th response On June 29, 2021, the City provided Mr. Brathwaite with a response stating “…the minutes are posted…the video had been posted right after the meeting. The public drive contains the information regarding the lot releases…the applicant also submitted a preliminary as built plan showing the location of the stormwater structures. This plan is signed and stamped by a civil engineer.” Current Appeal In his appeal, Mr. Brathwaite stated, “[t]he City of Brockton has not provided a clear response to this public records request as required.” In a phone conversation on July 23, 2021 with a staff attorney, the City confirmed that there are no additional records responsive to Mr. Brathwaite’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 the City does not possess any additional records responsive to Mr. Brathwaite’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Brathwaite 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, .f) .A ~ ~ ~ - ~ 0 rw.J«M - Rebecca S. Murray Supervisor of Records cc: Jamal Brathwaite