Lisa Morales v. Wareham Town Clerk (SPR 20211829)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2021 SPR21/1829 Kristi Kuklinski Town Clerk Town of Wareham 54 Marion Road Wareham, MA 02571 Dear Ms. Kuklinski: I have received the petition of Lisa Morales appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2021, Ms. Morales requested: 1. All income and expenditures from Onset Residential Parking fund(s) FY 2020 to present; and, 2. The number of employee Onset parking permits issued in 2020 and 2021 to date. On July 15, 2021, the Town provided Ms. Morales with certain of the records responsive to her requests. Unsatisfied with the response, on July 23, 2021, Ms. Morales petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her July 23rd petition to the Supervisor, Ms. Morales indicates that the Town has not provided all the records responsive to her question 1, and has not responded to her question 2. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Kristi Kuklinski SPR21/1829 Page 2 August 3, 2021 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). After this appeal was opened, Judith Whiteside, Chair of the Town’s Select Board suggests in a July 23rd email that the appeal should not be allowed because Ms. Morales has asked questions and not requests for records. Please be advised, that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). In addition, under the Public Records Law the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). However, while Ms. Morales categorized her requests as “questions” in her July 23rd petition for an appeal with this office, the Town must use its superior knowledge of its records in providing any records that exist and are responsive to Ms. Morales’ July 14th request for records. 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). The Town provided certain of the records responsive to Ms. Morales’ request number 1, but it is unclear whether the Town has additional records responsive to both of Ms. Morales’ July 14th requests. Conclusion Accordingly, the Town is ordered to provide Ms. Morales with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lisa Morales