Paul DeMeo v. Gardner, City of - Community Development & Planning (SPR 20231034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2023 SPR23/1034 Titi Siriphan City Clerk City of Gardner 115 Pleasant Street, Room 201 Gardner, MA 01440 Dear Ms. Siriphan: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) 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. DeMeo requested “... the minutes of the meeting for March 27th, 2023…” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0851 Determination of the Supervisor of Records (May 15, 2023). In my May 15th determination, I found the Department intended on providing a further response. On May 16, 2023, the Department provided said response. Unsatisfied with the Department’s May 16th response, Mr. DeMeo petitioned this office and this appeal, SPR23/1034, was opened as 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

Titi Siriphan SPR23/1034 Page 2 May 30, 2023 The City’s May 16th response In the City’s May 16th response, the City indicated that it provided all responsive records. Current Appeal In his appeal, Mr. DeMeo suggested that the City failed to provide all responsive records. In a phone call on May 30, 2023, the City confirmed that no additional responsive records exist. 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 has provided all records responsive to Mr. DeMeo’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. DeMeo 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). Sincerely, Manza Arthur Supervisor of Records cc: Paul DeMeo Sophie Dorow