Kathleen Grant v. Andover, Town of - Town Clerk (SPR 20220198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2022 SPR22/0198 Melissa K. Ripley Town Clerk Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Ripley: I have received the petition of Kathleen Grant appealing the response of the Town of Andover (Town) to an email from Ms. Grant. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 12, 2022, Ms. Grant asked the following by email: [Ms. Grant is] interested in where the town government stands with NDAs. 1. From 2015 how many NDAs are still in effect whether the town has released them from the agreement or not? 2. Who or which organization are the agreements with? [3.] How many new NDAs have been implemented since July 1, 2021? Another area [Ms. Grant is] interested is land and property. 4. Which lands have been purchased or sold by Andover since 2015? 5. Which lands have been exchanged or swapped by Andover since 2015? 6. Which lands have been leased by Andover or leased out by Andover since 2015? The Town responded on January 27, 2022, stating that “the town does not have a duty to answer questions or conduct research.” 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). 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 K. Ripley SPR22/0198 Page 2 February 9, 2022 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. Current Appeal In her appeal petition, Ms. Grant contends the following: It is important for the public to know about NDAs because they are used to protect the powerful, in this case Andover Town government and/or employees and not the other party(ies). The Town government is acting on the behalf of residents and business owners and we have a right to know what is going on. Land deals are also made by the Town government acting on the behalf of the residents and business owners. The deals are usually worked out in Select Board Executive sessions. It is difficult to find out what finally was agreed to and acted on. The public has a right to know this information. No Duty to Answer Questions, Conduct Research Ms. Grant is 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). 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). Where Ms. Grant submitted to the Town a list of questions, I find the Town has no duty under the Public Records Law to answer such questions. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Grant wishes to submit a request for public records to the Town, and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Melissa K. Ripley SPR22/0198 Page 3 February 9, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathleen Grant