Amanda Alix v. Shutesbury, Town of (SPR 20240307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0307 Grace Bannasch Town Clerk Town of Shutesbury 1 Cooleyville Road P.O. Box 264 Shutesbury, MA 01072 Dear Mrs. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 27, 2023, Ms. Alix requested: [1.] All attorney’s invoices received by the Town of Shutesbury since July 1, 2023; [2.] The updated architect’s library project schedule presented at the Library Building Committee meeting of 11/14/23. The Town responded on November 27, 2023; December 4, 2023; December 5, 2023 and December 11, 2023. Unsatisfied with the responses, Ms. Alix petitioned this office and this appeal, SPR24/0307, 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. See 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 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

Grace Bannasch SPR24/0307 Page 2 February 14, 2024 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 November and December Responses In its November 27, 2023 response, the Town stated that it had received the request. In its December 4, 2023 response, the Town provided several records. In its December 5, 2023 response, the Town stated, “…we should be able to provide you with a response by Monday.” In its December 11, 2023 response, the Town stated, “[t]he rest of the invoices you requested are attached.” Current appeal In her appeal, Ms. Alix asserted: I discovered item No. 1 had not been completely fulfilled while attending Shutesbury’s Special Town Meeting on Tuesday January 23, 2024…I consulted a Finance Committee recording of a meeting that took place on November 28, 2023, which showed a spreadsheet listing a total of $40,000 in expending and yet- to-be paid legal invoices. The invoices I received totaled only $26,850.00. On February 7, 2024, the Town stated via email, “[t]he reason the total number discussed by the Finance Committee and at the Town Meeting was different from the total of the invoices [Ms. Alix] received is because there were additional invoices that fell outside the parameters of her request, being received either before July 1st or after she submitted her request.” On February 7, 2024, Ms. Alix stated via email, “[s]ince the Town Administrator, two weeks previous, reported totals to the Finance Committee over the invoice totals received by me, I believe there are still some invoices outstanding.” Based upon a phone conversation on February 9, 2024, between a Public Records Division staff attorney and the Town, the Town confirmed that it has no further records responsive to the request. No Duty to Create Records 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); 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 of the time of the request. See G. L. c. 66, § 10(a)(ii).

Grace Bannasch SPR24/0307 Page 3 February 14, 2024 Conclusion Accordingly, where the Town has confirmed that it does not possess additional records and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Ms. Alix is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix