Frederick Giuliani v. Monson, Town of - Town Clerk (SPR 20220238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2022 SPR22/0238 Mary F. Watson Town Clerk Town of Monson 110 Main Street Monson, MA 010507 Dear Ms. Watson: I have received the petition of Frederick Guliani appealing the response of the City of Framingham Finance Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 10, 2022, Mr. Guliani requested various records regarding a by-law relating to trash pickup. On January 26, 2022, the Division provided a response. Unsatisfied with the Division’s response, Mr. Guliani petitioned this office and this appeal, SPR22/0238, 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. The Town’s January 26th response On January 26, 2022, the Town provided Mr. Guliani with a response stating,”… the Town of Monson never established a bylaw for town-wide trash pickup. Therefore we are unable 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

Mary F. Watson SPR22/0238 Page 2 February 15, 2022 to comply with the request regarding the establishment of town-wide trash pick-up bylaw, minutes of town meeting, letter from the Attorney General, and/or amendments and documents supporting amendments, additions, changes, deletions or additions, to the bylaw, by any other authority.” Current Appeal In his appeal, Mr. Guliani suggested that the Town had responsive documents to his request. In a phone call on February 14, 2022, the Town confirmed that there are no records responsive to Mr. Guliani’s request. 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 Town does not possess any records responsive to Mr. Guliani’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Guliani 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, Rebecca S. Murray Supervisor of Records cc: Frederick Guliani