Emmanuel J. Vida v. Andover, Town of (SPR 20240664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2024 SPR24/0664 Kathryn L. Forina Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Forina: I have received the petition of Emmanuel Janvier Vida appealing the response of the Town of Andover (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 29, 2024, Mr. Vida requested “…Vacant list, Pre-foreclosure, Code Violation, Probates, Water shut off, Fire damage properties, Tax delinquencies, Utility [lien] (electric & [water shut-off]).” On February 29, 2024, the Town provided a response, which included certain responsive records. The Town also indicated it did not possess certain responsive records. Unsatisfied with the Town’s response, Mr. Vida petitioned this office and this appeal, SPR24/0664, was opened as a result. While this appeal was pending, the Town provided a supplemental response on March 7, 2024. 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 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

Kathryn L. Forina SPR24/0664 Page 2 March 15, 2024 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 February 29th Response In its February 29, 2024 response, the Town states, “[i]n regard to your request for fire damaged properties, [the Town’s] Fire Rescue does not keep one document or list of properties that have sustained fire damage. Attached please find the most recent list of all fire alarms for the last six months. In regard to your request for tax delinquencies[,] [a]ttached please find the most recent delinquent tax advertisement and a list of properties with open tax liens.” Further, the Town indicated: [1] In regard to your request for a vacant list, pre-foreclosure and probate the [Town] does not keep these types of records; [2] In regard to your request for code violations, the [Town] files code violations under individual addresses. No document exists for all properties with any active code violations; [3] In regard to your request for electric utility liens, the [Town] does not operate an electric utility. No such record exists [;] [and,] [4] In regard to your request for water shut off, the [Town] does not shut off water service for non-payment. No such record exists. Current appeal In his March 1, 2024 email, Mr. Vida asserts, “I understand that [the Town] has indicated that some of these records may be associated with individual properties. Nevertheless, I believe that compiling such information into a comprehensive list is feasible, especially if it can be input into a computer system. Having access to these reports and addresses will be helpful.” The Town’s March 7th supplemental response In its March 7, 2024 response, the Town asserts: [i]n his request Mr. Vida requested copies of Vacant list, Pre-foreclosure, Code violation, Probates, Water shut off, Fire damage properties, Tax delinquencies, Utility [lien] (electric & [water shut off]. The [Town] does not keep records on vacancies, pre-foreclosures, probates, water shut-offs (the [T]own does not shut off water for non-payment), fire damaged properties, or electric utility liens (the [T]own does not operate an electric utility). The Town provided Mr. Vida with documents related to fire alarms and tax delinquencies. In his appeal Vida asserts

Kathryn L. Forina SPR24/0664 Page 3 March 15, 2024 I understand that [the Town] has indicated that some of these records may be associated with individual properties. Nevertheless, I believe that compiling such information into a comprehensive list is feasible, especially if it can be input into a computer system.” The [Town] does not have or maintain a database or comprehensive list of the items Mr. Vida requests … No Duty to Create Records Mr. Vida is advised, under the Public Records Law a custodian 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 Accordingly, where the Town has confirmed that it does not possess certain records responsive to the request, and has no duty to create records in response to a public records request, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Emmanuel Janvier Vida