Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20211825)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2021 SPR21/1825 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Timothy Toomey, appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2021, Mr. Toomey requested “…all information relating to Town’s May 3 Town Meeting comment made by personnel committee and [named selectman] regarding report, studies, or any other related information with other governmental agencies or consulting organizations for town administrators or administrative assistants compensation [sic] salary or pay.” Prior appeal The responsive records were the subject of a prior appeal. See SPR21/1558 Determination of the Supervisor of Records (July 8, 2021). In my July 8th determination I found that the Town provided a supplemental response on July 6, 2021. Unsatisfied with the response, Mr. Toomey appealed and SPR21/1825 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

Catherine McClenaghan SPR21/1825 Page 2 August 6, 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 Town’s July 6th response In the Town’s July 6th response they stated “I have been informed that there are no other studies responsive to this request. [Named Person] referred to two reports at Town Meeting. Both of those reports were sent to you on June 17, 2021.” Current Appeal In his current appeal Mr. Toomey suggests that there are additional responsive records to his request stating “[t]he response did not provide the report stated at the May 3 Town Meeting by Selectmen/Personell [sic] member Peterson in response to a specific comparison study for the Town Administrator. What was [provided] are studies on all other town employees, not the town administrator which was the request and absent in the reports provided.” 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 Town does not possesses any additional responsive records responsive to Mr. Toomey’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Toomey 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy Toomey