Malden Transparency v. Millbury, Town of - Public Schools (SPR 20213238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 23, 2021 SPR21/3238 Kerri Sundeen Records Access Officer Executive Administrative Assistant to the Superintendent Millbury Public Schools 12 Martin Street Millbury, MA 01527 Dear Ms. Sundeen: I have received the petition of Malden Transparency appealing the response of the Millbury 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 sought, “an attorney fee affidavit outlining the time spent, the attorney who performed the work, and the work performed [pertaining to a previous records request by Malden Transparency].” 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 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. 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

Kerri Sundeen SPR21/3238 Page 2 December 23, 2021 Current Appeal In the appeal petition, Malden Transparency states, “In the SPR’s findings and order, the following specific allowance was made: ‘I find the School has met its burden to assess . . . a fee in excess of $25.00 per hour . . . On December 9, 2021 [Malden Transparency] respectfully requested . . . an attorney fee affidavit outlining the time spent, the attorney who performed the work, and the work performed.” The School responded on December 13, 2021 stating, “[a]t this time, the [School] is not in possession of any records that are responsive to [the] request in this matter.” In an email to this office and Malden Transparency on December 13, 2021, the School explained the following: The [School] 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 [Malden Transparency] seeks the billing entries relative to this fulfilled request, the [School] 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 has confirmed that it does not possess records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden Transparency