William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20221179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2022 SPR22/1179 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 William A. Moschella, Esq. appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2022, Attorney Moschella requested, “…records concerning the Town of Rowley's Highway Department Authority and/or the Highway Surveyor Authority granted by the Town of Rowley, plus any records that exceed those granted bu[sic] M.g.l.c 41. 62.” On May 19, 2022, the Town responded. Unsatisfied with the Town’s response, Attorney Moschella petitioned this office and this appeal, SPR22/1179, 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 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 May 19th response On May 19, 2022, the Town provided a response stating, “the Highway Surveyor is an elected position (see attached election results), as such he has the exclusive control of the 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 SPR22/1179 Page 2 June 2, 2022 ordinary repair of public ways in Rowley without being subject to the authority of the selectmen.” Current Appeal In his appeal, Attorney Moschella suggested that the Town’s answer was unclear if there were responsive records to his request. In an email dated May 23, 2022, the Town confirmed that there are no responsive records to Attorney Moschella’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 does not possess any records responsive to Attorney Moschella request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Moschella 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: William A. Moschella, Esq.