Michelle Loubert v. Great Barrington, Town of - Office of the Town Clerk (SPR 20232709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2023 SPR23/2709 Jennifer L. Messina Town Clerk Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Ms. Messina: I have received the petition of Michelle Loubert appealing the response of the Town of Great Barrington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2023, Ms. Loubert requested a copy of a specific state law “referenced at the 9/11 and 9/18/23 Select Board meetings.” Previous appeal This request was the subject of a previous appeal. See SPR23/2417 Determination of the Supervisor of Records (October 25, 2023). In the October 25th determination, I ordered the Town to clarify whether additional records existed. The Town responded on November 2, 2023. Unsatisfied with the response, Ms. Loubert petitioned this office and this appeal, SPR23/2709, 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 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

Jennifer L. Messina SPR23/2709 Page 2 November 17, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s November 2nd response In its November 2, 2023 response, the Town states that it “does not possess a copy of the state law referenced at the 9/11/23 and 9/18/23 Selectboard meetings” and that it “has provided all relevant information in the town’s October 2, 2023 response letter to [Ms. Loubert].” In a telephone conversation between a representative of the Town and this office, the Town confirms that it has provided Ms. Loubert with all the records in its possession that are responsive to the 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. Loubert, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Loubert 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: Michelle Loubert