William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20222002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 14, 2022 SPR22/2002 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Attorney William A. Moschella appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2022, Attorney Moschella requested “public records submitted that were used and referenced specifically by page number of the ZBA [Zoning Board of Appeals] filed decision.” He goes on to cite eight passages from the ZBA decision referred to in his request. The Town responded on August 30, 2022, indicating that all responsive records were previously provided to Attorney Moschella. Unsatisfied with the Town’s response, Attorney Moschella appealed, and this case was opened as a result. While this appeal was pending, the Town provided a supplemental response on September 1, 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 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

Catherine M. McClenaghan SPR22/2002 Page 2 September 14, 2022 or redacted portion of the responsive record. Current Appeal In his appeal petition, Attorney Moschella contends that he does not have the materials mentioned in his public records request. In an email to this office and the Town on September 1, 2022, he specifically notes that his current “public record demand is specially narrowly tailored and requests information that has not been previously provided.” (Emphasis in original). The Town’s Responses In its August 30, 2022 response, and in a letter on September 1, 2022, the Town indicates that it has previously provided responsive records to Attorney Moschella, including productions on May 17, 2022 and June 13, 2022, in response to previous requests. Possession, Custody, or Control 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). 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 its August 30, 2022 response, the Town states that “all of the written materials that constitute the record of the case (including all exhibits) have been produced to” Attorney Moschella. In a letter to this office and Attorney Moschella on September 1, 2022, the Town further states that “he is entitled to  and has received  all of the public records in the Town’s possession or subject to its control concerning” the ZBA case in question. In a phone conversation with this office on September 9, 2022, an attorney for the Town further confirmed that the Town has produced all records that it can find that are at all responsive to Attorney Moschella’s request. Conclusion Where the Town has confirmed that it does not possess additional records responsive to Attorney Moschella’s request, I will now consider this administrative appeal closed. If Attorney Moschella 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Catherine M. McClenaghan SPR22/2002 Page 3 September 14, 2022 Sincerely, Manza Arthur Supervisor of Records cc: William A. Moschella, Esq. Thomas Mullen, Esq.