Mason Woolley v. South Hadley, Town of - Town Clerk (SPR 20230458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0458 Sarah B. Gmeiner Town Clerk Town of South Hadley 116 Main Street, Room 108 South Hadley, MA 01075 Dear Ms. Gmenier: I have received the petition of Mason Woolley appealing the response of the Town of South Hadley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2022, Mr. Woolley requested, “email correspondence of [a named individual] regarding [a named individual] from 9/01/2022 to 11/12/2022.” Prior Appeal This request was the subject of a previous appeal. See SPR22/0168 Determination of the Supervisor of Records (February 8, 2023). In my February 8th determination, I directed the Town to clarify if it possesses additional records. The Town responded on February 22, 2023. Unsatisfied with the response, Mr. Woolley petitioned this office and this appeal, SPR23/0458, 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, § 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Sarah B. Gmeiner SPR23/0458 Page 2 March 17, 2023 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 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 February 22nd Response In its February 22, 2023 response, the Town stated, “[the Town] has provided you with all records responsive to the underlying request.” Current appeal In his appeal, Mr. Woolley stated, “I attached ‘provided records’ these are the records the town provided to my request, then the withheld records, these are records the town did not provide but fell under the scope of the request. I am aware of these records because another member of the public . . . has been requesting records from the town of South Hadley which is included as ‘withheld records’ and shared those police records with me, which upon doing so I realized the town had withheld 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). Based upon a conversation between a Public Records Division staff member and a Town representative, the Town confirmed that it has no additional records responsive to the request. 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. Mr. Woolley is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c).

Sarah B. Gmeiner SPR23/0458 Page 3 March 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Mason Woolley Alexander Castro, Esq.