Malden Transparency v. Wayland, Town of - Public Schools (SPR 20213198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3198 Parry Graham Assistant Superintendent Wayland Public Schools 41 Cochituate Road Wayland, MA 01778 Dear Assistant Superintendent Graham: I have received the petition of Malden Transparency appealing the response of the Wayland Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2021, the requestor sought the following: For the time period January 1, 2019 through the date [the School] respond[s] with the responsive documents . . . 1. All billing statements and/or invoices from [a named law firm]. 2. All documents evidencing payments made to [a named law firm]. Previous petition; appeal This request was the subject of a previous petition from the School and subsequent appeal. See SPR21/2590 Determination of the Supervisor of Records (October 13, 2021) and SPR21/2589 Determination of the Supervisor of Records (October 19, 2021). In my October 19th determination, I found that the School had met its burden in responding to the request, in regards to its fee estimate. 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). 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

Assistant Superintendent Parry Graham SPR21/3198 Page 2 December 14, 2021 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. 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. Current appeal In an email correspondence on December 4, 2021 to the School, the requestor states: Per the SPR’s decision, “…the School was previously approved to assess a fee for segregation and redaction, and to assess a fee limited to $75.00 per hour for attorney review.” Please provide an attorney fee affidavit outlining the time spent, the attorney who performed the work and the work performed. The School responded on December 8, 2021, indicating “there are no responsive documents to your request. The [School] does not have a fee affidavit.” The School provided a supplemental response on December 13, 2021, reiterating that there are no responsive records. 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 informed the requestor that it does not possess documents responsive to the request, and has no duty to create records responsive to the request, the School has satisfied its burden in responding to this request. I will now consider this administrative appeal closed.

Assistant Superintendent Parry Graham SPR21/3198 Page 3 December 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency