Joan P. Beckta v. Everett, City of - Solicitor's Office (SPR 20222188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2022 SPR22/2188 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway, Room 21 Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Joan P. Beckta appealing the response of the City of Everett (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2022, Ms. Beckta requested numerous records regarding a city project with a named company. On September 19, 2022, the City responded. Unsatisfied with the City’s response, Ms. Beckta petitioned this office and this appeal, SPR22/2188, 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. The City’s September 19th response In the City’s September 19, 2022 response, the City provided responsive records with redactions and withheld personal notes under Exemption (e). 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

Colleen M. Mejia, Esq. SPR22/2188 Page 2 October 5, 2022 Current Appeal In her current appeal, Ms. Beckta suggested that the City failed to provide all responsive records. Ms. Beckta suggested that her requested was not for personal notes. In an email dated September 26, 2022, the City stated that they provided all responsive records. Further in a telephone call with a staff member and City representative, the City confirmed that all responsive records have been provided. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, 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). 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 City does not possess any additional records responsive to Ms. Beckta’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Beckta 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). Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta