Geraldine Mullaly v. Swansea, Town of - Advisory & Finance Committee (SPR 20231938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Town Manza Arthur Supervisor of Records September 5, 2023 SPR23/1938 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2023, Ms. Mullaly requested, “the minutes/list of documents/other exhibits for the Advisory and Finance Committee Meetings dated 04/26/2023, 05/15/2023, and 06/14/2023.” Prior Appeal This request was the subject of a previous appeal. See SPR23/1767 Determination of the Supervisor of Records (August 14, 2023). In my August 14th determination, I directed the Department to clarify whether it possesses additional records responsive to the request. The Town provided a response on August 16, 2023. Unsatisfied with the response, Ms. Mullaly petitioned this office and this appeal, SPR23/1938, 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, § l0A(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 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

Diane Pelland SPR23/1938 Page 2 September 5, 2023 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. The Town’s Responses In its August 16, 2023 response, the Town provided responsive records. In an email dated August 28, 2023, the Town stated: [1.] the A&F Committee meeting minutes of 04/26/2023 went for approval on 08/23/23 – we are waiting to receive them. [2.] the price proposal is attached to the back of the Town Administrator’s memo. That is all that was presented. Current appeal In her appeal on August 21, 2023, Ms. Mullaly states: The following items that I requested have not be[en] provided: [1.] Approved 04/26/2023 A&F Committee Meeting Minutes (received only a draft) No Duty to Create Records Please be advised, under the Public Records Law the Town is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Town does not yet possess the approved meeting minutes, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed.

Diane Pelland SPR23/1938 Page 3 September 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly