Mary Dormer v. Carver, Town of - Town Clerk (SPR 20213162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3162 Cara Dahill Town Clerk Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Cara Dahill: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 22, 2021, Ms. Dormer requested, “…all documents pertaining to the hook up of the homes to town water (which should include a watershed, or water from Middleboro) on Lakenham Drive because of the contamination of the private wells from the North Carver Landfill in the time period of the 1990s and early to mid 2000s. Include all documents that pertain to the compensation that was provided to the homeowners at that time.” Previous Appeal The records sought were the subject of a previous appeal. See SPR21/3096 Supervisor of Records Determination (December 3, 2021). The Town provided Ms. Dormer with a response on December 3, 2021. Unsatisfied with the response, Ms. Dormer petitioned this office and this appeal, SPR21/3162, 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. 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

Cara Dahill SPR21/3162 Page 2 December 14, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s December 3rd Response On December 3, 2021, the Town provided additional records to Ms. Dormer and stated, “[p]lease note the planning and health departments had no additional documents pertaining to this request.” Current Appeal On December 3, 2021, Ms. Dormer indicated, “I had asked for all documents relating to the water line, which included any agreements. These documents reference a Plymouth street water line contract, as well as contracts with Middleborough. Please provide all documentation including contracts and agreements…” No duty to create records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). In a conference between the Town and a Public Records Division staff member on December 14, 2021, the Town clarified that it had further searched for the records with various Town departments and that there are no outstanding documents such as contracts or agreements. Conclusion Given that the Town has confirmed it does not possess additional records responsive to this request, I will consider this administrative appeal closed. If Ms. Dormer 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Cara Dahill SPR21/3162 Page 3 December 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer