Philip Johenning v. Milton, Town of - Town Clerk (SPR 20212705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2021 SPR21/2705 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Phillip Johenning appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2021, Mr. Johenning requested: [1] Any correspondence between the Municipal Broadband Committee or any member and Comcast, RCN or any other commercial internet provider[;] [2] Any Request for Quote package related to broadband services for the Town that has been assembled by the Committee[, and;] [3] Minutes to any meeting where commercial internet service rates were discussed. The Town responded on September 27, 2021, and sent a supplemental response on September 29, 2021. On October 14, 2021, unsatisfied with the Town’s response, Mr. Johenning petitioned this office and this appeal, SPR21/2705, 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 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

Helene Bettencourt SPR21/2705 Page 2 October 28, 2021 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 September 27th and 29th Responses In its September 27, 2021 response, the Town stated, “[a]ttached please find a response to Mr. Johenning’s recent public record request that was emailed to Mr. Johenning this afternoon.” On September 29, 2021, the Town further stated it “now supplements [its September 27th] response. The Town is not in possession of any records that are responsive to sections 1 or 3 of your request. The Town hereby produces additional records in response to section 2 of your request.” Current Appeal In his October 14, 2021 appeal, Mr. Johenning stated, “I asked to see any correspondence between the Broadband Committee and Comcast, Verizon, RCN or any other supplier of broadband services…I also asked for the request for quote package. I received nothing that was responsive.” No Duty to Create Records In its September 27th and 29th responses, as well as in telephone calls with a member of the Public Records Division on October 25th and 28th respectively, the Town indicated that it has provided Mr. Johenning with all of its records that are responsive to the request. 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). Where the Town has provided records responsive to Item 2 of Mr. Johenning’s request, and confirms that it does not possess records responsive to Items 1 and 3, I find that Mr. Johenning’s appeal regarding this request is resolved. Public records requests; petitions to Supervisor of Records While this appeal was pending, this office received further correspondence from Mr. Johenning regarding this appeal on October 26, 2021. In this communication, Mr. Johenning indicated that he is seeking to obtain certain records that may be in the Town’s possession, custody, or control. Mr. Johenning is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer

Helene Bettencourt SPR21/2705 Page 3 October 28, 2021 (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for subsequent records was not made directly to the Town’s RAO, I am unable to opine on that matter. If Mr. Johenning would like to obtain copies of these records, Mr. Johenning is advised that he should make a separate public records request to the Town’s RAO. Mr. Johenning may then appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Whereas the Town does not possess any records responsive to Mr. Johenning’s September 10th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Johenning 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, Rebecca S. Murray Supervisor of Records cc: Philip Johenning