Laurie MacDonald v. Orange, Town of - Town Clerk (SPR 20221254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 13, 2022 SPR22/1254 Nancy M. Blackmer Town Clerk Records Access Officer 6 Prospect Street Orange, MA 01364 Dear Ms. Blackmer: I have received the petition of Laurie MacDonald appealing the response of the Town of Orange (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2022, Ms. MacDonald requested “a list of all town staff that have left the employment of Orange from January 2020 through May 1, 2022 and their contact information.” The Town responded on May 24, 2022, indicating that such a record does not exist. Unsatisfied with the Town’s response, Ms. MacDonald appealed, and this case 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. 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. 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

Nancy M. Blackmer SPR22/1254 Page 2 June 13, 2022 Current Appeal In her appeal petition, Ms. MacDonald contends that “soon after the HR board announced publicly it would be conducting exit interviews, the town decided and announced that they would be doing exit interviews. Since the town will be doing exit interviews as well, there will have to create a list.” The Town’s May 24th Response In its May 24, 2022 response, the Town states that “the list of names [Ms. MacDonald] requested is not available in any record/document and [the Town is] not required to create a record/document that does not exist.” Records in Existence Please be 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). 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). In a phone conversation with this office on May 31, 2022, a representative for the Town explained that the Town has no list responsive to Ms. MacDonald’s request, and has never kept a list of employees who have left. The Town further explained that there is no report that can be run though its payroll system that would provide such a list. Conclusion Where the Town has confirmed that it does not possess any records responsive to Ms. MacDonald’s request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laurie MacDonald