Frank Wood v. Framingham, City of - City Clerk (SPR 20220837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0837 PJ Iversen Super RAO Mayor's Office Department City of Framingham 150 Concord St. Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Frank Wood appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 7, 2022, Mr. Wood requested emails from a named committee to the Mayor. On April 8, 2022, the Department responded. Unsatisfied with the City’s response, Mr. Wood petitioned this office and this appeal, SPR22/0837, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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

PJ Iversen SPR22/0837 Page 2 April 15, 2022 The City’s April 8th response On April 8, 2022, the Department provided a response stating, “…there are no responsive records to this request.” Current Appeal In his current appeal Mr. Wood, indicated that the City had records responsive to his request. In a phone call with a City representative and a Staff Attorney, the City confirmed that there are no records responsive to this 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 City confirmed it does not possess any records responsive to Mr. Wood’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Wood 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: Frank Wood