Michael Hugo v. Framingham, City of (SPR 20230050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2023 SPR23/0050 Paul J. Iversen Records Access Officer City of Framingham City Clerk Office 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Michael Hugo appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 6, 2022, Mr. Hugo requested various records relating to a named individual. Prior Appeal This request was the subject of a previous appeal. See SPR22/2815 Determination of the Supervisor of Records (December 14, 2022). The City responded on December 29, 2022. Unsatisfied with the response, Mr. Hugo petitioned this office and this appeal, SPR23/0050, was opened as 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, § l0A(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 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

Paul J. Iversen SPR23/0050 Page 2 January 20, 2023 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 City’s December 29th Response In its December 29, 2022 response, the City stated, “[t]here are no records responsive to your request.” Current appeal In his appeal, Mr. Hugo asserts, “… I have been told… that the requested information does, in fact, exist.” No Duty to Create Records Under the Public Records Law, the City 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). Based upon a conversation between a Public Records Division staff member and a City representative, the City confirmed that it has no records responsive to the request. Conclusion Accordingly, where the City 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. Hugo 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: Michael Hugo