Joseph E. Solomon v. Methuen, City of - City Clerk (SPR 20230207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2023 SPR23/0207 Anne Drouin City Clerk City of Methuen Searles Building 41 Pleasant Street Methuen, MA 01844 Dear Ms. Drouin: I have received the petition of Joseph Solomon appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 17, 2023, Mr. Solomon requested: [1] [C]opies of all special permits issued in the City of Methuen both current or expired for a firearms sale business[;] [2] [C]opies of any approval that has been issued currently or in the past for firearms sale of firearms storage license in the City of Methuen. On January 31, 2023, the City provided a response. Unsatisfied with the response, Mr. Solomon petitioned this office and this appeal, SPR23/0207, 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(d)(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 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

Anne Drouin SPR23/0207 Page 2 February 10, 2023 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. The City’s January 31st Response In its January 31, 2023 response, the City asserted that “the [City] does not have any documentation that is responsive to either category of records. Therefore, the City respectfully declines your request due to the absence of any responsive records.” Current appeal In his appeal, Mr. Solomon states, “I find it very difficult to believe [no] records exist for the other four businesses especial[ly] for the one that is currently operating.” In a supplemental response dated February 6, 2023, the City states, “in light of the Requestor’s feedback in his appeal, the City undertook an additional search for records, and the City found documentation responsive to the Requestor’s request. A true and accurate copy of that documentation is attached hereto as Exhibit A.” In a further response dated February 6, 2023, Mr. Solomon states that the City is withholding additional responsive records. On February 7, 2023, the City provided a supplemental response in which it asserted: This City denies that it has or is “withholding” documents. Although not required to do so, the City undertook an additional search for records responsive to Mr. Solomon’s request following receipt of his email yesterday. That search included looking specifically for responsive documentation pertaining to the addresses noted in Mr. Solomon’s most recent correspondence. That search did not reveal any responsive documents. The City, therefore, respectfully submits that it has furnished all documentation, within the City’s possession, custody, or control, that is responsive to Mr. Solomon’s request.

Anne Drouin SPR23/0207 Page 3 February 10, 2023 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 City has confirmed that it has no additional responsive records in its possession, I find that Mr. Solomon’s appeal regarding the January 17th request is resolved. Conclusion Where the City does not possess any additional records responsive to Mr. Solomon’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Solomon is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Solomon