Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20212011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/2011 Patricia R. Dzuris Town Clerk Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On July 26, 2021, Mr. Mazurczyk requested the following records: [1] … invoices to date for legal fees Town incurred to remove Town Manager … from that position that expired June 30, 2021 and continues, [2] his current employment status and [3] receipts for payments he received since his contract expired … [including] invoices for two (2) IPhones he … operates for personal use at Town payer’s expense. The Town responded on August 9, 2021. Unsatisfied with the response, Mr. Mazurczyk petitioned this office and this appeal, SPR21/2011, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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 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

Patricia R. Dzuris SPR21/2011 August 23, 2021 Page two 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). The Town’s August 9th response In its August 9th response, the Town stated, “… the July 2021 payroll record … is provided.” Regarding request #2, the Town asserted, “t]here are no records responsive to your request …” The Town further opined, “… the Town Manager does not have two Town-provided iPhones, but rather one iPhone and one iPad. Nor does the Town provide devices for family members of employees. Records responsive to your request for ‘invoices for two (2) IPhones he (family) operates for personal use at Town payer’s expense’ have already been provided …” No Duty to Create Records Please be advised, 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). 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 has provided records responsive to request 1 and does not possess any records responsive to Mr. Mazurczyk’s request number 2 and has no duty to create records responsive to the request and with regard to request 3 has previously provided the records, I will now consider this administrative appeal closed. If Mr. Mazurczyk is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stanley Mazurczyk