Christopher Falco v. Rockland, Town of - Town Clerk (SPR 20230890)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0890 Liza Landy Town Clerk Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landy: I have received the petition of Chris Falco appealing the response of the Town of Rockland (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 24, 2023, Mr. Falco requested copies of permits, permit applications, inspection certificates and other related documents of a specific property. Mr. Falco also requested that “[w]hen providing requested documents [the Town should] delineate [them] with each item number requested.” The Town provided a response on May 3, 2023. Unsatisfied with the Town’s response, Mr. Falco petitioned this office and this appeal, SPR23/0890, 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

Liza Landy SPR23/0890 Page 2 May 16, 2023 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 May 3rd response In its May 3, 2023 response, the Town provided Mr. Falco with records related to his request. Current appeal In his appeal, Mr. Falco states the following: I have made the attached Public Records Request to the Town of Rockland Mass, 02370. I have received a response that does not delineate any of the items as requested and also does not provide numerous items requested and no explanation as to why. At this time, it does not appear that the Records custodian not its Building Department are following any of the statutory authority for the Massachusetts Statewide Retention Schedule. 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). Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Mr. Falco’s appeal, I find the Town must clarify whether the responsive records can be provided in the format that Mr. Falco requested. I encourage the parties to work together to resolve the outstanding issues.

Liza Landy SPR23/0890 Page 3 May 16, 2023 Conclusion Where the Town has provided a response to Mr. Falco’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Falco is not satisfied with the resolution of this administrative appeal, he 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: Chris Falco