Robert Bland v. Rockport, Town of (SPR 20221495)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2022 SPR22/1495 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 Rockport Conservation Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2022, Mr. Bland requested: 1. The statement signed by the buyer of 23 Haven Avenue when it was sold by the applicant, required by section D(34), page nine of order. 2. The deed from the applicant to the current owner of 23 Haven Avenue that refers to the requirements of the order (page eleven of the order). 3. Correspondence with the applicant and the current owner of the property regarding the privileges granted to the Rights of Way Committee. 4. Regarding the September 24, 2020 plan forming the basis of the order: any update to that plan depicting a “4 ft wide trail” extending from its termination point on that plan to Haven Avenue. 5. Regarding the September 24, 2020 plan forming the basis of the order: any update to that plan depicting a public way, public trail easement (Wetland Bylaw Regulations, Section C-h), a public foot path, or a public path way. 6. Any other plan of record depicting a public way, a public easement, a public footpath, or a public pathway. 7. Documentation that establishes Sacramento Avenue as a public way, public trail easement, public foot path, or public path way, (18B Mass. Practice, Municipal Law and Practice § 23.5, G.L. c. 82 §§ 21-24, G.L. c. 84 § 23). On April 1, 2022 and April 28, 2022, the Commission responded. Unsatisfied with the responses, Mr. Bland petitioned this office and this appeal, SPR22/1495, was opened as a result. 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 SPR22/1495 Page 2 July 14, 2022 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. 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 Commission’s April 28th Response On April 28, 2022, the Commission provided responsive records. Current Appeal In his current appeal, Mr. Bland asserts that: None of these attachments include any of the records request on March 25…. On April 29, I contacted [the records custodian] (cc: Town Clerk) and indicated that the records she provided are non-responsive to the March 28 records request, asking her for clarification. In an email to Mr. Bland sent on July 12, 2022, a Town representative informed Mr. Bland that “[t]o the best of our knowledge there are no further responsive records to this request.” 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). 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

Melanie Waddell SPR22/1495 Page 3 July 14, 2022 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). Where the Commission confirms that it has provided responsive records in its possession, I find that Mr. Bland’s appeal regarding the March 25th request is resolved. If Mr. Bland seeks additional records, he may wish to submit a new request to the Commission. Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Conclusion Where the Commission does not possess any additional records responsive to Mr. Bland’s request, 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, Manza Arthur Supervisor of Records cc: Robert Bland