Robert Bland v. Rockport, Town of (SPR 20213211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2021 SPR21/3211 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 18, 2021, Mr. Bland requested the following: 1. Minutes of the Rights of Way Committee meeting held on or about November 17, 2021 whether either in draft or approved form (G.L. c. 30A § 22(c)). 2. The notes, recordings or other materials used at the above meeting in preparation of such minutes (G.L. c. 30A § 22(e)). The Town responded on December 7, 2021. Unsatisfied with the Town’s response, Mr. Bland appealed, and this case 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 agency or municipality 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. Att’y 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 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 SPR21/3211 Page 2 December 21, 2021 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 7th Response In its December 7, 2021 response, the Town states “that the minutes of the meetings are not recorded and there is no draft or notes. The minutes are created from [the Rights of Way Chair’s] memory and he has nothing to send [Mr. Bland].” Records in Existence 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 accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In an email to this office on December 10, 2021, the Town confirmed that “the information doesn’t exist[.]” Open Meeting Law In his original request, Mr. Bland cites the Open Meeting Law. See G. L. c. 30A, § 22. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address any issues relating to the Open Meeting Law in this determination. See G. L. c. 30A, § 23. Conclusion Where the Town confirmed that it does not possess records responsive to Mr. Bland’s request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Bland