Mary Dormer v. Carver, Town of - Town Clerk (SPR 20220134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2022 SPR22/0134 Cara Dahill Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On December 30, 2021, Ms. Dormer requested records from a named development project, “…please provide me the amount of the donation made by [named company], the account information where the donation was made and what those funds were used on. Please provide all banking statement, receipts, bills or any other documentation, including any correspondence from [named person] or any sitting Planning Board member from that time that discuss such donation and the use of it.” On January 13, 2022, the Town responded and provided a further response on January 20, 2022. Unsatisfied with the Town’s responses, Ms. Dormer petitioned this office and this appeal, SPR22/0134, 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). 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

Cara Dahill SPR22/0134 Page 2 February 3, 2022 The Town’s responses In its January 13th response the Town stated, “…[the] money that was deposited into on December 3, 2019 in the amount of [named amount]. The money had not been drawn down on at all.” In its January 20th response the Town stated, “accounting can only provide you with the amount that was donated. We do not have record of who donated the money. That would be in the minutes of the meeting that was held when the money was donated. There have been no invoices as the money has never been spent. What was donated is what remains in the account.” Current Appeal In her current appeal, Ms. Dormer stated, “[w]ithout some type of accounting information, there is no way for me to know if this is in fact monies that were donated to the tree fund.” In a conversation between a Public Records Division staff attorney and a Town representative, the Town confirmed that there are no additional records responsive to Ms. Dormer’s request. No Duty to Create Records Please be advised, under the Public Records Law the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Town does not possess any additional records responsive to Ms. Dormer’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Dormer 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(A)(c).

Cara Dahill SPR22/0134 Page 3 February 3, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer