Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20230008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2023 SPR23/0008 Patricia E. Dzuris Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On December 12, 2022, Mr. Mazurczyk requested, “…pension records [the] Town is obligated to payout to this former [named] Chelmsford cop.” The Town responded on January 3, 2023. Unsatisfied with the response, Mr. Mazurczyk petitioned this office and this appeal, SPR23/0008, 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 Town’s January 3rd response In the Town’s January 3, 2023 response, the Town advised, “[t]he Town of Chelmsford 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

Patricia E. Dzuris SPR23/0008 Page 2 January 17, 2023 does not have any records that are responsive to this request. The Town of Chelmsford does not provide pension distributions to its retired employees. The Town of Chelmsford’s retirees receive pension payments from the Middlesex County Retirement System. The retirement system is an independent governmental entity.” The Town provided Mr. Mazurczyk with the website for the Middlesex County Retirement System. In a telephone conversation between a senior attorney of the Public Records Division and a representative of the Town, the Town confirmed it had no records. 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 records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Mazurczyk 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: Stanley Mazurczyk