Justin R. McCarthy v. West Springfield, Town of - Office of the Town Clerk (SPR 20220948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0948 Otto Frizzell Town Clerk Town of West Springfield 26 Central Street, Suite 8 J. Edward Christian Municipal Office Building West Springfield, MA 01089 Dear Mr. Frizzell: I have received the petition of Attorney Justin McCarthy appealing the response of the Town of West Springfield (Town) to a request. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2022, Attorney McCarthy inquired: Did your health board impose a mask mandate at any time between December 1, 2021 and February 28, 2022? If yes, when did the mandate begin and end? Did your health board issue an order reciting the existence of an emergency (per M.G.L. c. 111, § 31) at any time between December 1, 2021 and February 28, 2022? The Town provided a response on April 22, 2022. Unsatisfied with the Town’s response, Attorney McCarthy petitioned this office and this appeal, SPR22/0948, 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

Otto Frizzell SPR22/0948 Page 2 May 2, 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. 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. The Town’s April 22nd Response On April 22, 2022, the Town stated, “There are no records responsive to your request.” Current Appeal In his current appeal, Attorney McCarthy stated, “If you don't answer my questions, I will file a complaint with the AG's office today. Thirteen other cities and towns in this county have responded to the exact same requests.” No Duty to Answer Questions, Conduct Research Attorney McCarthy 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 Attorney McCarthy 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 Attorney McCarthy wishes to submit a request for public records to the Town, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Justin McCarthy