Dan Albert v. Marblehead, Town of (SPR 20222774)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2774 Kyle A. Wiley Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Dan Albert appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 10, 2022, Mr. Albert requested: [1] Any and all documents and records showing the Engineering Department and the Department of Public Works (DPW) assessment of the feasibility of applying Complete Streets principles to roadway maintenance and repair project(s) currently underway (November 2022); and [2] Any and all records documenting the evaluation and implementation and effectiveness of the Complete Streets Policy, including but not limited to those required by the policy itself. In a response dated November 10, 2022, the Town informed Mr. Albert, “[t]here are no documents responsive to this request.” As a result of the response, Mr. Albert petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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

Kyle A. Wiley SPR22/2774 Page 2 December 16, 2022 order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. 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). In a December 15, 2022 response to this appeal, the Town informed Mr. Albert and this office that the Town has no documents responsive to Mr. Albert’s request. Conclusion Accordingly, where the Town has confirmed that it does not possess records responsive to this request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Dan Albert