Frank Wood v. Framingham, City of - City Clerk (SPR 20213281)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 20, 2021 SPR21/3281 Todd Palmer City Clerk City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Frank Wood appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2021, Mr. Wood requested “. . . the recorded video of the Human Relations Commission meeting on 12/9/21.” The City responded on December 17, 2021, indicating there are no responsive records. Unsatisfied with the City’s response, Mr. Wood petitioned this office and this appeal, SPR21/3281, 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 town 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 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

Todd Palmer SPR21/3281 Page 2 December 20, 2021 Current appeal In its December 17, 2021 response, the City asserts “[t]here are no records responsive to your request. The meeting in question was not recorded.” In his appeal petition, Mr. Wood states the following: They typically record the event for the purposes of minutes, and once the minutes are documented they delete the recording. We have in the past requested the recordings be available immediately after the event, to preserve the meeting file as a public record, and when requested they have. . . . We are asking for the preservation of the video file from the 12/9/2021 Framingham Human Relations Commission meeting. It was recorded as all others in the past have been. In an email correspondence on December 20, 2021, the City confirmed that there are no records responsive to Mr. Wood’s request. No Duty to Create Records 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). Please be advised, 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 City does not possess records responsive to Mr. Wood’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood