Malden Transparency v. Maynard, Town of - Public Schools (SPR 20213225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2021 SPR21/3225 Colleen Andrade Administrative Assistant to the Superintendent Maynard Public Schools 3R Tiger Drive Maynard, MA 01754 Dear Ms. Andrade: I have received the petition of Malden Transparency appealing the response of the Maynard Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 9, 2021, Malden Transparency requested “an attorney fee affidavit outlining the time spent the attorney who performed the work and the work performed” regarding SPR21-2554. See SPR21/2554 Determination of the Supervisor of Records (October 19, 2021). The School provided a response on December 9, 2021. Unsatisfied with the School’s response, Malden Transparency petitioned this office and this appeal, SPR21/3225, 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. 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 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

Colleen Andrade SPR21/3225 Page 2 December 17, 2021 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 School’s December 9th Response In its December 9, 2021 response, the School stated it did not have “any records responsive to [Malden Transparency’s] request.” In its appeal to this office on December 10, 2021, Malden Transparency stated; “OpenMalden certainly deserves an actual, auditable receipt and detail for the serves it paid for under the auspices of the SPR’s Orders. No such accounting has been provided.” In an email on December 17, 2021, the School provided a response explaining, “[t]he District does not have an attorney fee affidavit and it is not required to create a record pursuant to a public records request. To the extent Open Malden seeks the billing entries relative to this fulfilled request, the District has not yet received the applicable billing statement from its attorney. It therefore does not possess any records responsive to the request.” 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 does not possess any records responsive to Malden Transparency’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Malden Transparency 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: Malden Transparency Brian Haas, Superintendent of Schools