Anonymous FOIA Request v. Framingham, City of (SPR 20230730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2023 SPR23/0730 Paul J. Iversen Senior Records Access Officer City of Framingham Mayor’s Office 150 Concord Street, Room 111 Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of an anonymous requestor 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 January 11, 2023, the requestor referred to the Town’s Fiscal Year 2022 Water/Sewer Demands and sought, “... an emailed copy of that existing public record/data sheet used to prepare the demands. Include property address, property owner name, and amount liened.” Prior Appeals This request was the subject of previous appeals. See SPR23/0223 Determination of the Supervisor of Records (February 16, 2023) and SPR23/0489 Determination of the Supervisor of Records (March 23, 2023). In my March 23rd determination, I directed the City to clarify if it possesses any records responsive to the request. The City provided a response on April 6, 2023. Unsatisfied with the response, the requester petitioned this office, and this appeal, SPR23/0730, 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). 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 SPR23/0730 Page 2 April 28, 2023 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. 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 Responses In its February 16, 2023 response, the City stated that there are “[n]o records responsive to your [January 11th] request.” In its April 6, 2023 response, the City repeated its prior response and again asserted, “[t]here are no records responsive to this [January 11th] request.” Current Appeal In his appeal, the requester states, “[t]here is… no way that the city has deleted or lost the data sheet used to prepare the letters…” 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). Conclusion Where the City does not possess any records responsive to the January 11th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If the requester 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).

Paul J. Iversen SPR23/0730 Page 3 April 28, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Anonymous