James R. Waugh v. Belmont, Town of - Town Clerk (SPR 20222017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 16, 2022 SPR22/2017 Ellen O’Brien Cushman Town of Belmont Office of the Town Clerk 455 Concord Avenue Belmont, MA 02478 Dear Ms. O’Brien Cushman: I have received the petition of James R. Waugh appealing the response of the Town of Belmont (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2021, Mr. Waugh requested: 1) All Belmont, MA Covid-19 safety violation citations; filed from 3/10/2020 to the present; and, 2) All Belmont, MA Covid-19 safety-related complaints filed from 3/10/2020 to the present. Previous Appeals This request was the subject of previous appeals. See SPR21/2048 Determination of the Supervisor of Records (August 23, 2021), SPR21/3066 Determination of the Supervisor of Records (December 6, 2021), SPR22/0898 Determination of the Supervisor of Records (April 28, 2022), and SPR22/1713 Determination of the Supervisor of Records (August 9, 2022). In my August 9th determination, I ordered the Town to provide a supplemental response. Subsequently, the Town responded on August 9, 2022, providing additional records. Unsatisfied with the Town’s response, Mr. Waugh further 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 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

Ellen O’Brien Cushman SPR22/2017 Page 2 September 16, 2022 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. Current Appeal In his appeal petition, Mr. Waugh cites a “10-Point List” that he previously provided to the Town and this office, addressing ten categories of records he believes are missing from the records provided by the Town, and another list of seven categories of records he believes are missing. He also indicates that he believes the additional responsive records provided to him with the Town’s August 9th response are “clearly unrelated” and “completely irrelevant” to his request. Mr. Waugh further contends that the Town ought to conduct a “manual search” of its records along with a “keyword search,” in order to produce additional records. In an email to this office and the Town on September 12, 2022, Mr. Waugh reiterated his claim that the Town “has produced SOME, BUT NOT ALL records” responsive to his request and describes “unaccounted-for instances of incomplete production.” (Emphasis in original). The Town’s Responses In its August 9, 2022 response, the Town provides two additional records, and refers back to its previous July 29, 2022 response. The Town explains in the July 29th response that it has previously provided Mr. Waugh with several hundred pages of records over the course of multiple productions. Records in Existence 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).

Ellen O’Brien Cushman SPR22/2017 Page 3 September 16, 2022 In this case, the Town has used its superior knowledge of the records in order to conduct a key word search, and provide responsive records to Mr. Waugh. In a phone discussion with this office on September 13, 2022, an attorney for the Town confirmed that the Town does not possess any additional records responsive to Mr. Waugh’s request. Conclusion Where the Town has confirmed that it does not possess additional responsive records and has no duty to create records responsive to the request, I will consider this administrative appeal closed. If Mr. Waugh 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). Sincerely, Manza Arthur Supervisor of Records cc: James R. Waugh Paul Kominers, Esq.