Joel Hart v. Leicester, Town of - Public Schools (SPR 20212969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/2969 Dr. Marilyn Tenzca Superintendent Leicester Public Schools 3 Washburn Square Leicester, MA 01524 Dear Superintendent Tenzca: I have received the petition of Joel Hart appealing the response of the Leicester Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2021, Mr. Hart requested records for “…any/all inspections records/results for the generators that pertain to NFPA 99 and NFPA 110 for the previous 10 yrs[sic].” The School provided a response on September 8, 2021. Unsatisfied with the School’s response, Mr. Hart petitioned this office and this appeal, SPR21/2969, 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 School’s September 8th response On September 8, 2021, the School provided Mr. Hart with a response stating that “…to your records request for the past two years. No records exist.” 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

Marilyn Tenzca SPR21/2969 Page 2 November 18, 2021 Current Appeal In his appeal, Mr. Hart stated, “it has come to light from another citizen in town, that they received records on generator maintenance during a larger public records request for boiler and generators records recently. Some of these records pre-date by my request for generator maintenance, so records do exist.” In a phone call with a School representative, the School confirmed that there are no responsive records to Mr. Hart’s request. 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. 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 Where the School has confirmed that it does not possess any records responsive to Mr. Hart’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Hart 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, r .f w ) .A. ~l «~ ~ M- ~- · o Rebecca S. Murray Supervisor of Records cc: Joel Hart