Jon Sylbert v. Monterey, Town of - Town Clerk (SPR 20213259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 27, 2021 SPR21/3259 Melissa Noe Town Clerk Town of Monterey 435 Main Road Monterey, MA 01245 Dear Ms. Noe: I have received the petition of Jon Sylbert appealing the response of the Town of Monterey (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2021, Mr. Sylbert requested two categories of “all communications between [named individuals], both sent and received, from May 4, 2021 to the present.” Over the course of multiple responses, the Town provided numerous responsive records. Unsatisfied with the Town’s response, Mr. Sylbert 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 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

Melissa Noe SPR21/3259 Page 2 December 27, 2021 Current Appeal In his appeal petition, Mr. Sylbert states the following: a) additional records were produced upon request after the RAO stated “all” records had been provided. b) in one record is a reference to another record that has yet to be produced, even after [Mr. Sylbert] had specifically requested it. G. L. c. 66, § 10 As to the first part of Mr. Sylbert’s appeal, please be advised that in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Sylbert in the first part of his appeal petition, I am unable to issue a determination on that part of the appeal. Records in Possession, Custody, or Control As to the second part of Mr. Sylbert’s appeal, please be advised that 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). Additionally, 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 a phone conversation with this office on December 21, 2021, the Town’s Records Access Officer explained that she has reached out to the individuals named in Mr. Sylbert’s request, and they have confirmed that they found no additional emails responsive to the request. Conclusion Where the Town confirmed that it does not possess additional records responsive to Mr. Sylbert’s request, I will now consider this administrative appeal closed. If Mr. Sylbert 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Melissa Noe SPR21/3259 Page 3 December 27, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jon Sylbert