Gerard F. Mackin, Jr. v. Weymouth, Town of - Town Clerk (SPR 20222087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2022 SPR22/2087 Kathleen Deree Town Clerk Town of Weymouth 75 Middle Street Weymouth, MA 02189 Dear Ms. Deree, I have received the petition of Gerard Mackin appealing the response of the Town of Weymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2022, Mr. Mackin requested “… all communications between Town employees in August 2022 regarding inspections of outdoor lighting facilities at the Zona site.” The Town responded on September 9, 2022. Unsatisfied with the response, Mr. Mackin petitioned this office and this appeal, SPR22/2087, 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 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. Attorney 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. 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

Kathleen Deree SPR22/2087 Page 2 September 26, 2022 The Town’s September 9th response In its September 9, 2022 response, the Town cited pending litigation to withhold the requested records. Current appeal In his appeal, Mr. Mackin asserts, “…my request relates to compliance of the premises not with Zoning but with the requirements for outside lighting which is not at issue in the zoning cases.” In a communication between a Town representative and a senior attorney of the Public Records Division, the Town reviewed further and advised that there are no documents responsive to the request. No Duty to Create Records Please be advised, under the Public Records Law the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Conclusion Where the Town does not possess any records responsive to Mr. Mackin’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Mackin is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Gerard Mackin Marsha Geronaitis