Robert Bland v. Rockport, Town of (SPR 20212152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 8, 2021 SPR21/2152 Patricia E. Brown Town Clerk/Records Access Officer Town of Rockport 34 Broadway Rockport, MA 01966 Dear Ms. Brown: I have received the petition of Robert Bland appealing the response of the Town of Rockport (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2021, Mr. Bland requested the following: 1. Any statute of the General Laws of Massachusetts, case law or judicial precedent which the town (or any of its committees) relies upon in asserting that any of the private ways shown on the plans referenced above has become public by other than the three methods cited above, including: a. Such statute, case law or judicial precedent whereby a private way can become public by recording a plan that alters that private way for the benefit of the public. b. Such statute, case law or judicial precedent whereby a private way can become public by using a deed to impose an easement for the benefit of the public within the boundaries of a private way shown on a recorded plan. 2. …a copy of the law to which [named person], acting as a member of the Rights of Way Committee in the name of the town, was referring to on that occasion. 3. Any and all records that any of the private ways shown on the plans referenced above has become public according to G.L. c. 84, § 23. On May 26, 2021, the Town responded and provided an additional response on June 25, 2021. Unsatisfied with the Town’s responses, Mr. Bland petitioned this office and this appeal, SPR21/2152, was opened as a result. 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 E. Brown SPR21/2152 Page 2 September 8, 2021 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. The Town’s May 26th and June 25th responses On May 26, 2021, the Town stated, “[t]his question has been asked by you previously, nothing has changed and we have no more information to provide you. The other information that you seek is available at the Registry of deeds Essex County Southern District.” On June 25, 2021, the Town further stated, “[i]n response to this Public Record Request for #1 this has already been answered and a response was sent to you, #2 the answer is in your deed and your abutters and available at the Essex County Registry of Deeds Southern District and for #3 there are no responsive documents from the Town on this matter.” Current appeal In his current appeal, Mr. Bland states, “…the records requested by #1 have been requested before and that the town has already replied regarding these records. I am unaware of either. It would be helpful and I would appreciate it if you would please provide the dates of any such previous records requests and the dates of any resulting replies. Regarding #2 I have again reviewed my deed and all of the deeds of the other abutters to the private ways on the subject plans (including yours) and I can find no reference to any law in any of them.” Records in existence 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). In light of the issues raised in Mr. Bland’s appeal, I find it is unclear whether the Town possesses records responsive to parts 1 and 2 of his request. With respect to part 3, where the Town indicates that it does not possess responsive records, I find that Mr. Bland’s appeal pertaining to this request has been resolved. Please be advised, under the Public Records Law the Town is not required to create a record in response to

Patricia E. Brown SPR21/2152 Page 3 September 8, 2021 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 Accordingly, the Town is ordered to provide Mr. Bland with a response to parts 1 and 2 of his request, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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: Robert Bland