Allen Waller v. Marblehead, Town of - Select Board (SPR 20231682)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2023 SPR23/1682 Kyle A. Wiley Records Access Officer Town of Marblehead Abbott Hall 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Allen Waller appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2023, Mr. Waller requested: [T]he following information ... for the calendar period 2022. [1.] Each request for public records submitted to the records access officer... [2.] The date on which a response is provided to the requestor; [3.] The date on which a public record is provided to the requestor; [4.] The number of hours required to fulfill the request; [5.] Fees charge to the person making the request, if any; [6.] Petitions submitted under clause (iv) of subsection (d) of Section 10; [7.] Requests appealed under section 10A; [8.] The time required to comply with supervisor of records orders... [9.] The final adjudication of any court proceedings under subsection (d) of Section 10A[.] Previous Appeal This request was the subject of a previous appeal. See SPR23/1327 Determination of the Supervisor of Records (June 30, 2023). In my June 30th determination, I ordered the Town to provide Mr. Waller with a further response. Subsequently, the Town responded on July 7, 2023, providing numerous responsive records. Unsatisfied with the Town’s response, and claiming the Town possesses additional responsive records, Mr. Waller appealed, and this case was opened as a result. 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

Kyle Wiley SPR23/1682 Page 2 August 4, 2023 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. Current Appeal In his appeal petition, Mr. Waller first contends that “the requests for public records in the response is incomplete.” Second, he argues that “the number of hours required to fulfill the request is not given for any of the requests.” Finally, he contends that the “time required to comply with the supervisors of records orders not given for any of the requests [sic].” The Town’s July 7th Response In its July 7, 2023 response, the Town provides numerous records responsive to Mr. Waller’s request. Please be advised that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation with this office on July 26, 2023, the Town confirmed that it does not possess additional records responsive to Mr. Waller’s request. Specifically, the Town explained that information concerning the amount of time required to fulfill requests would be contained in each related fee estimate. If not included in a fee estimate, the amount of time

Kyle Wiley SPR23/1682 Page 3 August 4, 2023 required for a request is otherwise not tracked by the Town. Conclusion Where the Town has confirmed that it does not possess additional records responsive to Mr. Waller’s request, and has used its superior knowledge of the records to assist Mr. Waller in obtaining the information he seeks, I will now consider this administrative appeal closed. If Mr. Waller 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Allen Waller