Robert Bland v. Rockport, Town of (SPR 20221241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2022 SPR22/1241 Melanie Waddell Town Clerk Town of Rockport Rockport Town Hall 34 Broadway Rockport, MA 01966 Dear Ms. Waddell: I have received the petition of Robert Bland appealing the response of the Town of Rockport (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2022, Mr. Bland requested “copies of the records showing the date of, and the method used, to establish [four identified] private ways as public, including …[r]ecords of statutory compliance according to G.L. c. 82, §§ 21-24 [and] [r]ecords of statutory compliance according to G.L. c. 84, § 23.” Previous Appeal The requested records were subject to a previous appeal. See SPR22/0963 Determination of the Supervisor of Records (May 9, 2022). In my May 9th determination, I ordered the Town to provide Mr. Bland with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. On May 26, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Bland petitioned this office and this appeal, SPR22/1241, 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). 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

Melanie Waddell SPR22/1241 Page 2 June 10, 2022 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. Att’y 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. The Town’s May 26th Response On May 26, 2022, the Town responded and noted that it “has provided all responsive documents, to the best of our knowledge. Should we locate any in the future we will provide them to you, subsequent to any applicable exemptions.” Current Appeal In his appeal, Mr. Bland asserts that, [t]his is a request for specific records, those that establish these private ways as public and the date of such establishment, including any records reflecting statutory compliance. Your reply suggests that the town has already provided such records. However, I am not in possession of any responsive documents or records (therefore the purpose of the request in the first place) and no responsive documents or records of any kind have ever been provided to me by the town. If you have the dates and that you claim “responsive documents” were provided to me, please let me know what those documents consist of and the dates they were provided. Alternatively, it would seem to be straightforward to simply send them again. In a phone conversation between a Public Records Division staff attorney and a Town representative on June 9, 2022, the Town confirmed that it does not have any additional records responsive to Mr. Bland’s request. When the Town stated in its May 26th response that it had provided Mr. Bland with the responsive documents, the document the Town was referring to was the original layout of the Phillips Estate, which according to the Town representative, has previously been provided to Mr. Bland. 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

Melanie Waddell SPR22/1241 Page 3 June 10, 2022 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 additional records responsive to Mr. Bland’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Bland 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: Robert Bland