Allison Jenkins v. Reading, Town of - Town Clerk (SPR 20222952)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2952 Laura A Gemme Town Clerk Records Access Officer Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: I have received the petition of Allison Jenkins appealing the response of the Town of Reading (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 2, 2022, Ms. Jenkins requested, “…a copy of the Mass or Federal law, regulations, or town policy that prohibits employees from entering a Town Clerk’s Office containing ballots. The Town provided a response on December 27, 2022. Unsatisfied with the response, Ms. Jenkins petitioned this office and this appeal, SPR22/2952, 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. Att’y 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 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

Laura A. Gemme SPR22/2952 Page 2 January 5, 2023 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. The Town’s December 27th Response In its December 27, 2022 response, the Town stated, “[i]t is in the [discretion] of the Chief Election Official how they are kept secure. Feel free to contact the SEC Election Division for more information.” Additionally, in an email dated January 2, 2023, the Town stated that it has no records to provide and that the requested information is part of MGL. Current appeal In her appeal, Ms. Jenkins states, “…The Town did not provide a copy of any law, regulations, or policy as requested.” Based upon a conversation between a Public Records Division staff member and a Town representative, the Town confirmed that it has no further records responsive to the 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. Ms. Jenkins 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: Allison Jenkins