Brandon Reed v. Brockton, City of (SPR 20221145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2022 SPR22/1145 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Brandon Reed appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2022, Mr. Reed requested “… a copy of all licenses, permits, and or complaints about [an identified property].” On April 25 and April 27, 2022, the City responded. Unsatisfied with the response, Mr. Reed petitioned this office and this appeal, SPR22/1145, 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 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. 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

Allison M. Cogliano Esq. SPR22/1145 Page 2 May 19, 2022 The City’s April 25th and 27th Responses On April 25, 2022, the City responded and noted that, The Commission issued an Enforcement Order on May 21, 2021 for the site work on [a specific address] including the clearing and parking lot installation. The owner has since filed a Notice of Intent application for the parking lot. The NOI application packet, which includes a copy of the Enforcement Order, as well as review reports, can be found here on the Commission public drive . . . . This application has been under review by the Commission and is on the posted agenda for the May 18th Commission meeting. The Commission will consider any new/ongoing site work as part of its May 18th discussion of next steps regarding the NOI and Enforcement Order. In an additional response on April 25, 2022, the City noted that “[w]e show no Motor Vehicle Repair Garage licenses at that address . . . . There is no fuel storage license at that address.” On April 27, 2022, the City responded and noted that “[w]e were not aware the building was being used to house vehicles. An inspection will take place to validate this complaint. As for the tow lot outside, there is currently action in the conservation commission concerning this property.” Current Appeal In his current appeal, Mr. Reed asserted that he has received three responses, but none of the complaints. In a phone conversation with this office on May 18, 2022, the City confirmed that no additional responsive records exist. 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 does not possess any additional records responsive to Mr. Reed’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Reed is not satisfied with the resolution of this

Allison M. Cogliano Esq. SPR22/1145 Page 3 May 19, 2022 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: Brandon Reed