Mohamad Fahd v. Mashpee, Town of (SPR 20230725)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2023 SPR23/0725 Deborah Dami Town Clerk Town of Mashpee 16 Great Neck Road North Mashpee, MA 02201 Dear Ms. Dami, I have received the petition of Mohamad Fahd appealing the response of the Town of Mashpee (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 20, 2023, Mr. Fahd requested, “…two actual emails. The one that was authored by the alleged ‘new gardener’ sent to ‘one of our MCGAC Board members’. The second actual email, from ‘one of our MCGAC Board members’ sent to [a named person], a member of the public committee styled above MCGAC.” The Town responded on April 5, 2023. Unsatisfied with the response, Mr. Fahd petitioned this office and this appeal, SPR23/0725, 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. 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

Deborah Dami SPR23/0725 Page 2 April 26, 2023 The Town’s April 5th Response In its April 5, 2023 response, the Town asserted, “[a]s previously stated, upon diligent search, the emails you are requesting have not been identified or found in the possession or files of the Town of Mashpee, its officers and/or employees; therefore, no such email is available for production in response to your request.” Based upon a conversation between a Public Records Division senior attorney and a City representative, the City confirmed that it has no further records responsive to Mr. Fahd’s request. 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 the requested records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Fahd 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: Mohammad Fahd