Trevor Foley v. Springfield, City of - Office of the City Clerk (SPR 20213035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 1, 2021 SPR21/3035 Stephen Roche, Esq. Third Associate City Solicitor City of Springfield 36 Court Street Springfield, MA 01103 Dear Attorney Roche: I have received the petition of Trevor Christian Foley appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 16, 2021, Mr. Foley requested, “[a]ll open housing code enforcement violations.” On November 17, 2021, the City responded. Unsatisfied with the City’s response, Mr. Foley petitioned this office and this appeal, SPR21/3035, 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 City’s November 17, 2021 response In its November 17, 2021 response, the City stated, “… there is no list of all open violations. Personnel in the Code Enforcement Department have advised that there are no records that are responsive to your request…” 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

Stephen Roche, Esq. SPR21/3035 Page 2 December 1, 2021 Current Appeal In his appeal Mr. Foley asserts, “I find this hard to believe and I would like to obtain a list of properties that have code violations.” In an email dated November 29, 2021, a City representative confirmed that no responsive records exist. 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 Where the City does not possess any records responsive to Mr. Foley’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Foley 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, § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Trevor Christian Foley Marvenia Frazier-Shubrick Public Records Coordinator