Dan Albert v. Marblehead, Town of (SPR 20232866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 8, 2023 SPR23/2866 Kyle A. Wiley Records Access Officer Town of Marblehead 188 Washington Street Marblehead, MA 01945 Dear Mr. Wiley: I have received the petition of Dan Albert appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 30, 2023, Mr. Albert requested “a count of [the] number of emails originating from [a specific email address].” The Town provided a response on November 21, 2023. Unsatisfied with the response, Mr. Albert petitioned this office and this appeal, SPR23/2866, 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. 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. 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

Kyle A. Wiley SPR23/2866 Page 2 December 8, 2023 The Town’s November 21st response In its November 21, 2023 response, the Town states that “there are no records responsive to this 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 does not have records responsive to Mr. Albert’s request and is not required to do research in response to a public records request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Dan Albert