Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20220385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2022 SPR22/0385 Catie McClenaghan Town Clerk Public Records Access Officer Town of Rowley P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Timothy A. Toomey appealing the response of the Town of Rowley (Town) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On January 28, 2022, Mr. Toomey requested: “[a]ny and all information that was submitted to conservation commission [to an identified] agent … or the conservation commission meeting and used in the application of any Determination of Applicability/RDA supplied for [identified location] … from July 22, 2019 to present.” Previous Appeal The requested records were the subject of a previous appeal. See SPR22/0318 Determination of the Supervisor of Records (February 14, 2022). The Town responded on February 14, 2022. Unsatisfied with the Town’s response, Mr. Toomey petitioned this office and this appeal, SPR22/0385, 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). To meet the specificity requirement a custodian 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

Catie McClenaghan SPR22/0385 Page 2 February 24, 2022 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 Responses In its February 14th response, the Town stated that “[t]he Conservation office has provided all requested documents responsive to Mr. Toomey’s public records request.” In its February 22nd further response, the Town advised, “[t]he Conservation Commission’s requirements as spelled out on the RDA Checklist (see attached) are ‘Plans and calculations clearly describing the location and the nature of the proposed work’. There is not a specification for RDA application submittals to be ‘scaled’ plans. Therefore to Mr. Toomey’s request for ‘scaled plans’ … there are no records of that specification in the file for that application … The Office has provided all documents in the file as requested.” Current Appeal In his appeal, Mr. Toomey indicated he requested, “… “SCALED” maps for the 366 central street parking lot project …” 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). Conclusion Where the Town confirms it does not possess records responsive to Mr. Toomey’s request for scaled maps and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Toomey is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy A. Toomey