Maria Consigli v. Milford, Town of - Town Administrator (SPR 20213106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 6, 2021 SPR21/3106 Richard Villani, Esq. Town Administrator Town of Milford 52 Main Street Milford, MA 01757 Dear Attorney Villani: I have received the petition of Maria Consigli appealing the response of the Town of Milford (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2021, Ms. Consigli requested records relating to an identified business. Previous Appeals This request is the subject of two combined previous appeals. See SPR21/2804 & SPR21/2805 Determination of the Supervisor of Records (October 28, 2021). There, I closed Ms. Consigli’s appeals because the Town provided a response on October 28th. Unsatisfied with the Town’s response, Ms. Consigli petitioned this office and this appeal, SPR21/3106, 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. 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

Richard Villani SPR21/3106 Page 2 December 6, 2021 The Town’s October 28th Response On October 28, 2021, the Town responded by providing records responsive to Ms. Consigli’s initial request. Current Appeal On November 19, 2021, Ms. Consigli indicated “…I did not receive the permit for [the named business] as requested, prior to any changes made to the Bylaws in September 2021. I also did not receive the occupancy, since inception, for [the named business]. This occupancy certificate would detail the number of dogs allowed at the facility each year since inception. It changed from 35 to 75 and I would like the document acknowledging this, the date thereof, and the corresponding occupancy provisions yearly.” The Town provided a clarifying response on November 30, 2021, stating, “…a copy of the most recent Building Permit, permit application, and corresponding Certificate of Occupancy were provided to Ms. Consigli by this office for the [named business in the October 28th response]. They are Permit No. 12-0282 dated 6/11/2012 and Certificate No 20-0282 dated 3/19/2013. Further, the Certificate of Occupancy does not and should not state the number of dogs allowed at this facility. There is no limit to the number of dogs allowed at this facility by any regulation within the Building Commissioner’s jurisdiction, or any other jurisdiction that I am aware, prior to September 2021. Further, there is no yearly document acknowledging an occupancy limit for the number of dogs in the possession of the Town. In summary, the Town does not possess any additional documents responsive to this 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. 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 In light of the fact that the Town did provide responsive documents on October 28, 2021 to Ms. Consigli and that the Town confirmed it does not have additional records responsive to this request, I will consider this administrative appeal closed.

Richard Villani SPR21/3106 Page 3 December 6, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Maria Consigli