Sunil Prajapati v. Burlington, Town of - Town Clerk (SPR 20221971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2022 SPR22/1971 Amy E. Warfield Town Clerk Town of Burlington 29 Center Street Burlington, MA 01803 Dear Ms. Warfield: I have received the petition of Sunil Prajapati appealing the response of the Town of Burlington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 17, 2022, Mr. Prajapati requested the following records: [1] (a) List of all permits issued by every department since Jan 1, 2016. List should include Permit #, Department, Permit Description, Property Type, Property Address, Owner, Date Opened, Date Approved to start work (if approved), Date Closed, if closed). Any additional information required for any or all permits will be in a follow-up email; 2. Fire Department Related: (b) List of Permits (Permit # only) where the Fire Department requested a test, (c) List of Permits where the Fire Department requested compliance with UL268, UL985, UL 2075, UL 268, UL 521 and NFPA 72; (d) List of Permits where a test was actually submitted; (e) A few sample test reports submitted to permits issued to single family, single family with in-law, single family with accessory and two family; Building Department Related: (f) List of Permits where Building Department found issues and construction was halted; (g) List of Permits where the Building Department found multiple issues and construction was halted multiple times; (h) List of Permits where the Building Department found height issues after permit was issued and construction work was started; (i) List of Permits where insulation was rejected and needed multiple efforts to resolve the matter. (j) List of Permits where the Building Department found need to enforce 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

Amy E. Warfield, Town Clerk SPR22/1971 Page 2 September 12, 2022 structural changes after construction was started; (k) List of Permits where the Building Department found it necessary to enforce removal of insulation from the basement; (l) List of Permits where the Building Department found it necessary to enforce removal of drywalls from the basement; (m) List of Permits where the Building Department found it necessary to enforce removal of electrical outlets from the basement; (n) List of permits where elevation by a licensed surveyor was requested at least once; (o) List of permits where elevation by a licensed surveyor was requested multiple times. Prior appeal The requested records were the subject of a prior appeal. See SPR22/1700 Determination of the Supervisor of Records (Supervisor) (August 3, 2022). The Town provided Mr. Prajapati with a response on July 21, 2022. The Town explained, “[t]he [Department] does not issue permits for residential fire alarm installations, and therefore [it] ha[s] no permit numbers to forward to you. Several addresses that installed fire alarm systems that conformed to the requirements of 780 CMR 9th Edition and NFPA 72 are: [three identified property locations]. I have also attached a sample test report that was requested.” Also on July 21st, the Town provided Mr. Prajapati with the list of permits that he requested. On July 22, 2022, the Town’s Legal Counsel, Alexander M. Castro of Mead, Talerman & Costa, LLC, sent Mr. Prajapati an email, asserting, “[p]lease be advised that the Town has provided you with all records responsive to the public records request…” Unsatisfied with the Town’s response and provision of records, Mr. Prajapati petitioned the Supervisor, and the prior appeal, SPR22/1700, was opened. In response to SPR22/1700, Attorney Castro provided a July 29, 2022 email response to Mr. Prajapati and this office. In his July 29th response, Attorney Castro indicated that the Town provided all the records responsive to the requests. However, Mr. Prajapati asserted in his prior petition to the Supervisor that the information he received is irrelevant, incomplete or inaccurate. As a result, in my August 3rd determination, I ordered the Town to provide a response to clarify whether it is in possession of additional information pertaining to Mr. Prajapati’s June 17th Requests Numbered 3(f)-(o). See SPR22/1700 Determination of the Supervisor (August 3, 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

Amy E. Warfield, Town Clerk SPR22/1971 Page 3 September 12, 2022 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Current appeal On August 17, 2022, the Town, through Attorney Castro, provided a further response as a result of the Supervisor’s August 3rd determination. In its August 17th response, the Town confirms for a second time that it has no further records or information regarding Mr. Prajapati’s June 17th request. Specifically, the Town’s August 17th response to Mr. Prajapati asserts, “[a]s stated in its July 22, 2022 and July 29, 2022 emails to you, the Town has provided you with all records responsive to your June 17, 2022 public records request.” The Town explained that the requested information is contained in the spreadsheet already provided to Mr. Mr. Prajapati. No Duty to Create Records Mr. Prajapati is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. 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, § 6A(d); see also G. L. c. 66, § 10(a)(ii). Further, 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). Conclusion Accordingly, where the Town has confirmed that it has no further records or information responsive to Mr. Prajapati’s June 17th public records request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Prajapati 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Sunil Prajapati Alexander M. Castro, Esq., Mead, Talerman & Costa, LLC