Allison Sloan v. Middleton, Town of - Town Clerk (SPR 20232460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2023 SPR23/2460 Ilene B. Twiss Town Clerk Town of Middleton 48 South Main Street Middleton, MA 01949 Dear Ms. Twiss: I have received the petition of Allison Sloan, appealing the response of the Town of Middleton (Town) to her request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2023, Ms. Sloan requested “…a copy of the Town Counsel reply to the Board of Library Trustees’ request for review of the 5/8/2023 draft policy #44 Workplace Civility Policy” as well as “…a copy of the email or written correspondence response from [a specified law firm].” Previous appeal This request was the subject of a previous appeal. See SPR23/2317 Determination of the Supervisor of Records (October 13, 2023). In the October 13th determination, I ordered the Town to clarify whether additional records existed. The Town responded on October 17, 2023. Unsatisfied with this response, Ms. Sloan petitioned this office and this appeal, SPR23/2460, 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. 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

Ilene B. Twiss SPR23/2460 Page 2 October 30, 2023 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. Current appeal In her appeal, Ms. Sloan states that she “believe[s] that emails or documents are being withheld.” The Town’s October 17th response In its October 17, 2023 response, the Town confirms that it “does not have any additional records that exist and that are in the custody or control of the custodian of records at the time of request.” 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 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 Town has provided responsive records in its possession to Ms. Sloan, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Sloan is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Allison Sloan