Dawn DePrizio v. Falmouth, Town of - Health Department (SPR 20231151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2023 SPR23/1151 Maura E. O’Keefe, Esq. Town Counsel Town of Falmouth 157 Locust Street Falmouth, MA 02540 Dear Attorney O’Keefe: I have received the petition of Dawn DePrizio appealing the response of the Town of Falmouth to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2023, Ms. DePrizio requested “…all email and text messages between 2016 and May of 2023 for communication(s) regarding instances of rodents and or compost pile on the property at [an identified address], East Falmouth MA [and] email[s] between homeowner … and occupant … with [T]own employees or [T]own shared [identified email accounts].” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1110 Determination of the Supervisor of Records (Supervisor) (May 30, 2023). On May 26, 2023, claiming to not yet have received responsive records, Ms. DePrizio petitioned the Supervisor and the prior appeal, SPR23/1110, was opened as a result. Current Appeal On May 31, 2023, a day after the Supervisor made a May 30th determination on the prior appeal, Ms. DePrizio petitioned the Supervisor again. In her May 31st email, Ms. DePrizio asserts, “the [T]own of Falmouth provided a response to my original appeal but failed to provide all documentation that was request[ed]. [T]hey failed to provide the emails for [an identified person].” Ms. DePrizio provided this office with the Town’s May 26th response, which indicated that a search was conducted of emails of the identified person’s email, the Health Department’s general email box and Director/Agent of the Health Department. . . . The Town’s response stated, “…no email correspondence [was] found. I will continue to search for anything we may 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

Maura E. O’Keefe, Esq. SPR23/1151 Page 2 June 12, 2023 have and will share it.” In addition, Attorney O’Keefe contacted the Supervisor’s office, informing this office that the IT Department was searching for any other email accounts, and that Ms. DePrizio would receive a supplemental response. As a result of Ms. DePrizio’s May 31st petition, the current appeal, SPR23/1151, 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. Subsequent to the opening of the current appeal, the Town, through its Legal Counsel, provided Ms. DePrizio and office with a June 7th response. In Attorney O’Keefe’s June 7th response, she informed Ms. DePrizio indicating, “[t]he Town has now completed its search of all records in its custody and control in [response to Ms. DePrizio’s May 7th request]. Attached you will find an email that is responsive to your request. There are no other emails to or from any of the people named or the email addresses listed within the stated time frame.” No Duty to Create Records Ms. DePrizio is 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).

Maura E. O’Keefe, Esq. SPR23/1151 Page 3 June 12, 2023 Conclusion Accordingly, where the Town provided a June 7, 2023 response to Ms. DePrizio, including an email response to her request, and indicated the Town has no further records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Dawn DePrizio