Mary Dormer v. Carver, Town of - Town Clerk (SPR 20230550)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2023 SPR23/0550 Michelle Sheehan Records Clerk Town of Carver Carver Town Hall 3 Center Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Mary C. Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2023, Ms. Dormer requested the following records: 1. [C]opies of all correspondence, emails, notes, records from December 1, 2022 to present relating or referring to map 61 parcel 7 among and between all members of board of selectmen, conservation commission and agent and town assessor and board of assessors; and 2. [A] copy of the packet that was provided to the board of selectmen, planning board conservation commission and board of assessors, including any purchase and sale agreement or lease agreement between the owner of the property and buyer/lessee. Previous appeal This request was the subject of a previous appeal. See SPR23/0444 Determination of the Supervisor of Records (March 16, 2023). In my March 16th determination, the Town was ordered to provide Ms. Dormer with a response. The Town provided a response on March 17, 2023. Unsatisfied with the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR23/0550, 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 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

Michelle Sheehan SPR23/0550 Page 2 April 5, 2023 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 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). The Town’s March 17th response In its March 17th response, the Town provided Ms. Dormer with email correspondences pertaining to the first part of her request and also provided the Select Board packet requested in the second part of her request. Current appeal In her appeal, Ms. Dormer states that “…the lease is missing from the documentation. Please forward that to me as it was part of the information that was required to be sent to the planning board, select board, assessors’ office and conservation commission.” In a subsequent response dated March 22, 2023, the Town stated as follows: I read in the NOI that the lease was attached and assumed that it was. Once you brought this to my attention via email, I double checked with all of the departments and this is the result. After contacting the Select Board, Planning Board, the Conservation Agent and the Town Assessor, I can confidently state there is no lease agreement found within the Town Records. Specifically, there has been no correspondence between the members of the Board of Assessors and/or Town Assessor referencing or regarding this parcel with the boards and committees identified in the request. The Assessors’ Office has not received any purchase and sales agreement or lease agreement between the property owner and the buyer/lessee. The Select Board packet does not contain any lease agreement, the information the Conservation Department has is the associated plan by Beals + Thomas which was included in the NOI to Convert Land, and after further review, no lease agreement was attached to the NOI as stated in the NOI to convert the land.

Michelle Sheehan SPR23/0550 Page 3 April 5, 2023 No Duty to Create Records Under the Public Records Law, there is no obligation 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 information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). In a conversation between a representative of the Town and a staff attorney of the Public Records Division, the Town confirmed that there are no additional records responsive to the request. Conclusion Where the Town has confirmed that there are no additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Dormer is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Mary C. Dormer