Mohamad Fahd v. Mashpee, Town of (SPR 20222498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2498 Deborah Dami Town Clerk Town of Mashpee 16 Great Neck Road North Mashpee, MA 02201 Dear Ms. Dami, I have received the petition of Mohamad Fahd appealing the response of the Town of Mashpee (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 30, 2022, Mr. Fahd requested, “…actual email, sent by ‘one of our MCGAC Board members’ that transmitted the anonymous document to the MCGAC chair.” Previous appeal This request was the subject of a previous appeal. See SPR22/2377 Determination of the Supervisor of Records (November 3, 2022). The Town responded on October 20, 2022 and October 24, 2022. Unsatisfied with the responses, Mr. Fahd petitioned this office and this appeal, SPR22/2498, 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 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

Deborah Dami SPR22/2498 Page 2 November 7, 2022 or redacted portion of the responsive record. The Town’s October Responses In its October 20, 2022 response, the Town provided an email and stated, “…to the extent that any of the records you have requested do not exist or were not created or received by a public official, the Town has no obligation to, and will not, create the same. The Town believes it has satisfied your request.” In its October 22, 2022 response, the Town confirmed its earlier response. Based upon a conversation between a Public Records Division senior attorney and a Town representative, the Town confirmed that it has no further records responsive to Mr. Fahd’s request. No Duty to Create Records 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); 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 Accordingly, where the Town has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Fahd is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Mohammad Fahd