Paul DeMeo v. Gardner, City of - City Clerk (SPR 20231821)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 18, 2023 SPR23/1821 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 July 1, 2023, Mr. DeMeo requested “... all emails and phone texts between [an identified person] and Mayor Mike Nicholson between July 1st, 2022 and July 1st, 2023.” On July 2, 2023, the City responded and indicated that it did not have any responsive records. Unsatisfied with the City’s response, Mr. DeMeo petitioned this office and this appeal, SPR23/1821, 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); 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 SPR23/1821 Page 2 August 18, 2023 The City’s July 2nd response In the City’s July 2, 2023 response, the City indicated that it did not have any responsive records. Current Appeal In his appeal, Mr. DeMeo claims that the City did not provide all responsive records. In a telephone call on August 16, 2023, the City confirmed that no responsive records exist for Mr. DeMeo’s request. 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 does not possess any 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 Karen Hardern