Linda Boisclair v. Peabody, City of - City Clerk's Office (SPR 20240849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2024 SPR24/0849 Allyson Danforth City Clerk City of Peabody 24 Lowell Street Peabody, MA 01960 Dear Ms. Danforth: I have received the petition of Linda Boisclair appealing the response of the City of Peabody (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2024, Ms. Boisclair requested “…a map connecting the city storm drain at [an identified address] to the city storm drain connecting to the city storm drain on [an identified address] in January of 2005… [and] … include all records, plans and materials evidencing installation of drainpipe and the work order of the installation of city drainpipe. Contractor hired by the City of Peabody that installed city drainpipe.” Previous appeals This request was the subject of previous appeals. See SPR24/0566 Determination of the Supervisor of Records (March 7, 2024) and SPR24/0691 Determination of the Supervisor of Records (March 19, 2024). In my March 19th determination, I learned that the City provided Ms. Boisclair with further responses dated March 14, 2024 and March 15, 2024. Unsatisfied with the City’s responses, Ms. Boisclair petitioned this office and this appeal, SPR24/0849, 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). 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

Allyson Danforth SPR24/0849 Page 2 April 2, 2024 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. The City’s March 14th and March 15th responses In its March 14, 2024 and March 15, 2024 responses, the City provided additional documents responsive to the request. Current Appeal Ms. Boisclair stated “[t]here is still no work order, who installed the city drain pipe … The [C]ity must have copy of the work order and date, time pipe was installed.” Based upon a telephone conference between a staff attorney of the Public Records Division and a City representative, the City confirmed that, the City has provided all responsive documents. No Duty to Create Records Please be 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 City has confirmed that it does not possess additional records responsive to Ms. Boisclair’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Boisclair is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c).

Allyson Danforth SPR24/0849 Page 3 April 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Linda Boisclair