Christopher Falco v. Rockland, Town of - Town Clerk (SPR 20231428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2023 SPR23/1428 Liza Landy Town Clerk Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landy: I have received the petition of Chris Falco, of Chris Falco Realty, 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.” On May 10, 2023, Mr. Falco made another request to the Town seeking: …complete and certified files from the [Town’s] Fire Department with respect to [an identified property address in the Town] Within that request [I] expected to receive Smoke and [C]arbon [M]onoxide detector certificates Certificate of Compliance according to M.G.L. [c. 148 §26f, 26f 1/2] for all transfers of ownership, which is required. [I] received none. I am again requesting specifically these Certificates of Compliance for all transfers of ownership for the complete history for this property, there will be several. Prior Appeals The requested records were the subject of prior appeals. See SPR23/0890 and SPR23/1104 Determinations of the Supervisor of Records (Supervisor) (May 16, 2023 and June 7, 2023). In SPR23/0890 pertaining to Mr. Falco’s April 24th request, the Town provided Mr. Falco with a May 3, 2023 response with records related to his request. However, Mr. Falco informed 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 SPR23/1428 Page 2 July 7, 2023 this office that the Town’s response did not delineate any of the items as requested and also did not provide numerous items requested with no explanation why. In my May 16, 2023 determination, I advised the Town and Mr. Falco that the Town is not required to create a record in response to a public records request. Nor, is a records custodian required to answer questions, or do research, or create documents in response to questions. Mr. Falco also requested that the records be provided in an electronic format. As a result, in my May 16th determination, I found the Town must clarify whether the responsive records can be provided in the format requested. I also encouraged the parties to work together to resolve the outstanding issues. In SPR23/1104 pertaining to Mr. Falco’s May 10, 2023 request, in his May 24th petition, Mr. Falco asserted, “[t]he issue here is [in this] appeal that the documents had to have existed. In fact, you cannot transfer property ownership without the [Smoke and Carbon Monoxide detector certificates, Certificate of Compliance], I am requesting.” Further, Mr. Falco contends that the Town must have destroyed the records without authorization. In my June 7th determination, I found, “[i]n light of the issues raised in Mr. Falco’s petition, the Town must clarify whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, the Town must explain in writing whether it complied with the Public Records Law and the Municipal Records Retention Schedule (Schedule) if it destroyed the records. See G. L. c. 66, § 10(a)(i). Subsequently, the Town provided a response on June 16, 2023. Unsatisfied with the Town’s response, Mr. Falco petitioned the 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). The Town’s June 16th response On June 16, 2023, the Town provided a response to the Supervisor’s June 7th determination regarding Mr. Falco’s May 10th request. In its June 16th response, the Town

Liza Landy SPR23/1428 Page 3 July 7, 2023 asserts: On May 24, 2023, the Town provided you with a response to [your] request, indicating there are no records in our possession that are responsive to your request, because the [sic] after a diligent search, Fire Department determined it is not in possession of any smoke and carbon monoxide certificate Certificate of Compliance.” The Municipal Records Retention Schedule – Fire Department and Fire District, does not list smoke and carbon monoxide certificates as documents the Fire Department must retain for a specified period. See Retention Schedule Attached hereto. Please be advised that the mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the governmental entity at the time the request is received. Consequently, there is no obligation to create a record for a requestor or to honor prospective requests. Current appeal In his June 22nd petition, Mr. Falco indicates: [o]n [June 7th] the [Supervisor] determined that the Town must clarify whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, the Town must explain in writing whether it complied with the Public Records Law and the Municipal Records Retention Schedule (Schedule) if it destroyed the records. See G. L. c. 66, § 10(a)(i). The Town responded but did not respond with any explanation to the [Supervisor’s] questions… Based on its June 16th response, I find that the Town did not meet its burden of specificity in responding to my June 7th order. The Town did not clarify whether the requested Smoke and Carbon Monoxide detector Certificates of Compliance existed and were destroyed, or whether the Smoke and Carbon Monoxide detector Certificates of Compliance did not initially exist. Further, the Town merely provides one page out of the Municipal Records Retention Schedule which refers to Fire Department records. However, the Town did not provide Mr. Falco and this office with a copy of the approved RMU-2 Application for Destruction Permission from the Secretary of the Commonwealth’s Records Management Unit. Therefore, I find the Town did not meet its burden in responding to my June 7th order, and it must clarify the issues raised in this determination. Order Accordingly, the Town is ordered to provide Mr. Falco with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10)

Liza Landy SPR23/1428 Page 4 July 7, 2023 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Chris Falco