Susan Butler v. Sheffield, Town of - Town Administrator (SPR 20220359)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2022 SPR22/0359 Jill Hughes Assistant to the Town Administrator Town of Sheffield Office of the Town Administrator 21 Depot Square Sheffield, MA 01257 Dear Ms. Hughes: I have received the petition of Susan Butler appealing the response of the Town of Sheffield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Butler requested to view the Select Board files regarding an identified airstrip. Prior appeals The requested records were the subject of prior appeals. See SPR21/0849; SPR21/1426; SPR21/1611; SPR21/2122; SPR21/3152; SPR22/0042 Determinations of the Supervisor of Records (Supervisor) (April 20, 2021; June 18, 2021; July 13, 2021; September 2, 2021; December 14, 2021; January 24, 2022. In my January 24th determination, I ordered the Town to provide a response to Ms. Butler. On February 2, 2022, the Town responded. Unsatisfied with the Town’s responses, Ms. Butler petitioned this office, and this appeal, SPR22/0359, 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 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

Jill Hughes SPR22/0359 Page 2 February 25, 2022 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 February 2nd response In the Town’s February 2, 2022, response the Town stated, “…you have had access to all of the Select Board records regarding [named person].” Current Appeal In her current appeal Ms. Butler suggested that the Town has additional responsive documents. In a phone call on February 18, 2022, the Town confirmed that there are no additional records responsive to Ms. Butler’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 confirmed it does not possess any additional records responsive to Ms. Butler’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Ms. Butler 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: Susan Butler