Robert Bland v. Rockport, Town of (SPR 20213126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3126 Patricia E. Brown Town Clerk/Records Access Officer Town of Rockport 34 Broadway Rockport, MA 01966 Dear Ms. Brown: I have received the petition of Robert Bland appealing the response of the Town of Rockport (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 8, 2021, Mr. Bland requested, “the records that created public rights within the boundaries of the private ways shown on a plan recorded” in a named book. On November 23, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Bland petitioned this office and this appeal, SPR21/3126, 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 Town’s November 23rd response In its November 23rd response, the Town stated, “[w]e have researched this. Many of these items you have already seen. We have nothing else on file to add 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

Patricia E. Brown SPR21/3126 Page 2 December 14, 2020 Current Appeal Mr. Bland indicated in his appeal that the Town did not provide all documents responsive records to his request. Mr. Bland stated that “…none of these pdf files contain any records that are subject to the November 8, 2021 request for public records, specifically records that created public rights (i.e., public footpaths/easements) within the boundaries of the private ways shown on a plan recorded.” In a telephone discussion with a staff member of the Public Records Division, a Town representative confirmed that all responsive records have been provided. 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 as the Town does not possesses any additional records responsive to Mr. Bland’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Bland 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: Robert Bland