Amanda Alix v. Shutesbury, Town of (SPR 20230844)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2023 SPR23/0844 Grace Bannasch Town Clerk Town of Shutesbury P.O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2023, Ms. Alix requested the following public records: [1] Executive [S]ession minutes from the 1/17/23 Library Building Committee meeting; [2] Current summary of ARPA requests and expenditures; [3] Legal opinion from McGregor, Legere, and Stevens regarding [the Town’s] Wetland Bylaws; and [4] Legal opinion from McGregor, Legere, and Stevens regarding the “statute of limitations” referred to at the 3/21/23 Select Board meeting in reference to the [T]own’s responsibility for the cleanup of historic fill on Lot O-32. On April 5, 2023 via email, the Town provided the records responsive to Ms. Alix’s Request Numbers 2 and 3. Regarding Ms. Alix’s Request Number 1, the Executive Session minutes from the January 17, 2023 meeting of the Library Building Committee (LBC), the Town informed Ms. Alix, “[t]he LBC will review these [E]xecutive [S]ession minutes at their next regular meeting, and if they’re approved for public release they’ll be uploaded to the website and MyTownGovernment as usual.” No Duty to Create Records On April 5th, the Town also informed Ms. Alix regarding her Request Number 4, “This was delivered verbally, and as such there are no records responsive to this portion of your request.” Please be advised, under the Public Records Law a custodian is not required to create a 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

Grace Bannasch SPR23/0844 Page 2 May 5, 2023 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). As a result of not receiving the Executive Session minutes, on April 28th, Ms. Alix petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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). Open Meeting Law After this appeal was opened, on May 2, 2023, the Town Clerk provided Ms. Alix with a further response, with a copy to a Senior Attorney in the Public Records Division. In her May 2nd response, the Town Clerk informed Ms. Alix, that the LBC “will schedule a meeting asap to vote to release the 1/17 minutes. As before, when they are submitted I will post them as normal and let you know.” The Town’s May 2nd response raises issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes and any other documents involved in the executive session in question. Accordingly, I will now consider this administrative appeal closed.

Grace Bannasch SPR23/0844 Page 3 May 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Grace Bannasch, Town Clerk