Paula Sterite v. Everett, City of - Office of the City Clerk (SPR 20231708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2023 SPR23/1708 Sergio Cornelio City Clerk City of Everett 484 Broadway Everett, MA 02149 Dear Mr. Cornelio: I have received the petition of Paula Sterite appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2023, Ms. Sterite requested “…a list of all nonprofit organizations, clubs or any entities using the Pope John property.” Prior Appeal This request was the subject of a previous appeal. See SPR23/1505 Determination of the Supervisor of Records (July 12, 2023). In my July 12th response, I found that the City must clarify if it possesses records other than the requested list responsive to Ms. Sterite’s June 27th request and pertaining to any non-profit organizations, clubs or any entities using the Pope John property. The City responded on July 24, 2023. Unsatisfied with the City’s response, Ms. Sterite petitioned this office and this appeal, SPR23/1708, 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) (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 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

Sergio Cornelio SPR23/1708 Page 2 August 8, 2023 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). 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 City’s July 24th Response In the City’s July 24, 2023 response, the City advised, “[t]he City does not have a list pertaining to any non-profit organizations, clubs or entities using the Pope John property. The requestor has been advised on two prior occasions that it does not have a list, that there are no responsive documents to her request and that it is not obligated to create a document in order to respond to the request. I hope this third response declaring that the City does not have responsive documents clarifies the fact that a list pertaining to any non-profit organizations, clubs or entities using the Pope John property does not exist.” No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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 Accordingly, where the City has confirmed that it does not possess the requested records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Ms. Sterite is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Paula Sterite Colleen Mejia, Esq.