Jeremy Freudberg v. Newton, City of - City Clerk (SPR 20220130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 2, 2022 SPR22/0130 Greta McConnell Public Records Admin. City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Ms. McConnell: I have received the petition of Jeremy Freudberg appealing the nonresponse of the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 2, 2021, Mr. Freudberg requested, “[a]ny written determination of Dover waivers made by the Commissioner of Inspectional Services for [identified property].” Prior Appeal The requested records were the subject of a prior appeal. See SPR21/3288 Determination of the Supervisor of Records (January 3, 2022). In my January 3rd determination I found that it was unclear if the City had responded to Mr. Freudberg and I ordered the City to provide a response. On January 11, 2022, the City responded. Unsatisfied with the City’s response Mr. Freudberg petitioned this office and this appeal, SPR22/0130, 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. 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

Greta McConnell SPR22/0130 Page 2 February 2, 2022 The City’s January 11th response On January 11, 2022, the City provided a response stating, “…The City has finalized its review of your request for public records. A search of all public records in the custody and control of the City reveals that there are no documents responsive to your request.” Current Appeal In his appeal, Mr. Freudberg stated, “…I find the City’s response unclear and ambiguous, at least to some degree. Consequently, it may be that the response denies the request in part, or is a failure to respond to the request in part, or both. I discuss below. To the extent that such a response is a failure to comply with a requirement of G.L. c. 66 § 10, I file this petition for appeal pursuant to G.L. c. 66 § 10A.” In an email dated February 1, 2022, the City confirmed that there are no responsive records to Mr. Freudberg’s requests. 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 City confirms it does not possess any records responsive to Mr. Freudberg’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Freudberg 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, /'J A •••• ~0.. 1Wf.J<,,GC(J. - ~· Rebecca S. Murray Supervisor of Records cc: Jeremy Freudberg