Dennis Millet v. Town of Erving - Town Administrator (SPR 20222731)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2022 SPR22/2731 Bryan Smith Town Administrator Town of Erving 12 East Main Street Erving, MA 01344 Dear Mr. Smith: I have received the petition of Dennis Millett appealing the response of the Town of Erving (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2022, Mr. Millett requested “all Com-Con emails related [to an identified address] from May 1st 2022 to current.” On November 18, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Millett petitioned this office and this appeal, SPR22/2731, 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. 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. 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

Bryan Smith SPR22/2731 Page 2 December 13, 2022 The Town’s November 18th Response In its November 18, 2022 response, the Town states: Enclosed, please find printed copies of emails and attachments related to your request that are in the Town’s custody. The Town is not assessing any fees related to this search. The Town is not withholding any portion of records relating to this request and, at this time, is not asserting any exemptions. Current Appeal In his appeal, Mr. Millett asserts: I received [the records] and looked through them they were all mixed up as far as dates. With several pages repeated up to three times in no specific order. The original email complaint is not among those received and there are also no emails for May and only approx.. 3 for June. There are also no con com minutes for May or June included. As [I] have never received the original email complaint or no explanation has been given for this, I would like to appeal the records given [versus] the request given. In a conversation between a Town representative and a staff attorney in this office, the Town representative confirmed that the Town does not possess any additional records responsive to Mr. Millett’s request. 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). Where the Town has confirmed that it has no additional responsive records in its possession, I find that Mr. Millett’s appeal regarding the October 17th request is resolved. Conclusion Where the Town does not possess any additional records responsive to Mr. Millett’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Millett is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior

Bryan Smith SPR22/2731 Page 3 December 13, 2022 Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Dennis Millett