Sean Hempseed v. Massachusetts Department of Transportation (SPR 20212839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2839 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Sean Hempseed appealing the response of the Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2021, Mr. Hempseed requested a copy of an operator crash report for a specified date from the Registry of Motor Vehicles. The Department responded on October 21, 2021. Unsatisfied with the Department’s response, Mr. Hempseed petitioned this office and this appeal, SPR21/2839, 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 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 Office’s October 21st response In its October 21st response, the Department requested the address to send the requested report. 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

William J. Doyle, Esq. SPR21/2839 Page 2 November 8, 2021 Current Appeal On October 21, 2021, Mr. Hempseed provided his address to the Department. In his October 27, 2021 appeal, Mr. Hempseed stated that he had attempted to follow-up with multiple Department representatives but was unable to reach any. On November 5, 2021, a representative of the Public Records Division spoke with the Department about this matter. The Department stated that they could not locate records responsive to Mr. Hempseed’s request but would reach out to the Registry of Motor Vehicles to confirm. That same day, the Department sent an email to Mr. Hempseed that stated, “[The Department] has contacted the appropriate records holders and, after their search, have found no public records responsive to your request. Accordingly, we are closing our file.” 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. Atty 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 Given that the Department does not possess records responsive to this request, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Hempseed