Erin Carney v. East Longmeadow, Town of - Town Clerk (SPR 20230764)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2023 SPR23/0764 Jeanne R. Quaglietti Town Clerk Town of East Longmeadow 60 Center Square East Longmeadow, MA 01028 Dear Ms. Quaglietti: I have received the petition of Erin Carney appealing the response of the Town of East Longmeadow (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On January 20, 2023, Ms. Carney requested the following: [1] What year was the ‘Hey Wagon’ playground equipment manufactured? And what year was the ‘Hey Wagon’ installed? [2] Was the wood on the ‘Hey Wagon’ pressure-treated wood? If yes, what chemicals were used to pressure-treat the wood? [3] What is the Town’s inspection protocol for the ‘Hey Wagon’ and other playground equipment? Please provide copies of the ‘Hey Wagon’ inspection logs from 2012 to present. [4] What is the Town’s repair protocol for the ‘Hey Wagon’ and other playground equipment? Please provide a copy of the repair invoice(s) for the ‘Hey Wagon’ from 2012-present. [5] What date was the ‘Hey Wagon’ torn down? Please provide the Town’s reason for the equipment being torn down versus repaired. Please provide the invoice and any other documentation regarding the tear down of ‘Hey Wagon.’ The Town provided a response on January 25, 2023. Unsatisfied with the Town’s response, Ms. Carney petitioned this office and this appeal, SPR23/0764, 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 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

Jeanne R. Quaglietti SPR23/0764 Page 2 May 2, 2023 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. 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 January 25th response In its January 25, 2023 response, the Town provided Ms. Carney with a copy of the work order for the equipment that was removed in response to item 5 of her request. The Town stated that it did not have any records in response to items 1-4 of her request. Current appeal In her appeal, Ms. Carney states the following: I am writing as my request for Public Records to the Town of East Longmeadow, MA was responded to with an evasive and incomplete response… I placed a strike through on the items they addressed by stating they could not find anything but the tear down order. The questions without a strike-through were NOT addressed in their response. I am writing the appeal, still looking for those answers to be provided to me. No Duty to Create Records In a communication between a Public Records Division staff attorney and a Town representative, the Town confirmed that it has no additional records responsive to the request. Please be advised, 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). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty 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).

Jeanne R. Quaglietti SPR23/0764 Page 3 May 2, 2023 Conclusion Where the Town has provided a response to Ms. Carney’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Carney 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: Erin Carney