Robert Bland v. Rockport, Town of (SPR 20221522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 11, 2022 SPR22/1522 Melanie Waddell Town of Rockport Rights-of-Way Committee 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. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 27, 2022, Mr. Bland requested: “…copies of records used to convert this way from private to public footpath where it intersects Phillips Avenue between 49 Phillips Avenue and 51 Phillips Avenue, including the following: 1. Records of statutory compliance according to G. L. c. 82, §§ 21-24; and 2. Records of statutory compliance according to G. L. c. 84, § 23.” Mr. Bland indicates that his preferred method of receiving the records is via email. On June 14, 2022, the Town provided a response asserting that the Rights-of-Way Committee/Town of Rockport has previously provided you with a CD-ROM of all responsive documents related to the Rights-of-Way. Ms. Debbie Powers in the Selectmen and Town Administrator’s Department indicated, “[a]ny responsive documents related to this request would be found on that CD-ROM. If you did not find any documents responsive to your request on that CD-ROM, then they have no further documents to provide.” As a result of the Town’s June 14th response, Mr. Bland petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Mr. Bland’s July 1, 2022 petition indicates that he is not in possession of a CD-ROM of all responsive documents related to the Rights-of- Way, and that he does not have a device to read a CD-ROM. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR22/1522 Page 2 July 11, 2022 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). Records in the Town’s possession Mr. Bland inquires as to what records the Town has in its possession that are responsive to his request, and what records the Town has asserted it already provided on a CD-ROM or in other formats. Mr. Bland indicated that he did not receive a CD-ROM with responsive records on it. Mr. Bland indicates that he contacted Ms. Powers again, via email on June 27th, informing Ms. Powers that he does not have a CD-ROM from the Rights-of-Way Committee, and asked that the records be provided as requested, or that the Town reply according to the Public Records Law and its Regulations. Specifically, Mr. Bland states in his June 27th email, “[t]he [T]own has marked the way subject to the request as public and the records required by law to establish it as public are either in the [T]own’s possession, or they are not.” 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). 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). The Town must identify what records it has in Town’s possession, custody and control that are responsive to Mr. Bland’s request. Format of the records Mr. Bland requested that the records be emailed to him, because Mr. Bland does not have a device to read any records on a CD-ROM. It is unclear what the native format of the records is, and whether the records could be emailed to Mr. Bland. The Town must clarify this issue. Order Accordingly, the Town is ordered to provide Mr. Bland with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Bland