Mary Dormer v. Carver, Town of - Town Clerk (SPR 20241257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1257 Michelle Sheehan Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 7, 2023, Ms. Dormer requested “all correspondence between SLT (which includes the owner and any employee or representative of the Company), RBBP, ERC and the Finance Committee in the last year.” Previous Appeals This request was the subject of previous appeals. See SPR24/0127 Determination of the Supervisor of Records (January 25, 2024); SPR24/0303 Determination of the Supervisor of Records (February 14, 2024); SPR24/0635 Determination of the Supervisor of Records (March 13, 2024); and SPR24/0967 Determination of the Supervisor of Records (April 11, 2024). In my April 11th determination, I found that it was unclear if the Town possessed additional records responsive to the request. The Town responded on April 25, 2024. Unsatisfied with the response, Ms. Dormer appealed and this case, SPR24/1257, 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 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

Michelle Sheehan SPR24/1257 Page 2 May 9, 2024 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 Town’s April 25th Response In its previous response on March 14, 2024 response, the Town stated, “[t]he Town would like to clarify that the estimate given was over $500.00 due to the amount of time it took to search and segregate the records requested and not due to how many actual records exist. If you look at the breakdown of the estimate, you can see the large part of the estimate is based on search and segregation time… You will see a large portion of the estimate is not for actual documents but rather time spent searching for and segregating the specific documents you had requested.” In its April 25, 2024 response, the Town stated, “[t]he Town would like to explain with specificity that the [T]own does not possess additional records responsive to Ms. Dormers request. The Town does not possess any other correspondence between SLT and RBBP; The Town does not possess any other correspondence between SLT and ERC; and the Town does not possess any other correspondence between SLT and the Finance Committee in the form of a letter as stated by Ms. Dormer. As stated before in the Town’s response of appeal SPR24/0635, the one (1) document provided to Ms. Dormer is the only record found. There are no other additional records responsive to her request.” Current Appeal In her appeal, Ms. Dormer states, “after my first appeal the Town stated that a fee of over $500 would be assessed for these records… In their original response and in their communication with your office they stated that there were hundreds of pages documents response to this requested [sic]. SLT, their agents and contractors, subcontractors are before our boards and committees repeatedly. In order to do that they must correspond with these boards and committees. That communication must, under the public records law be provided to the request or, without unnecessary delay. It is well settled that correspondence includes emails, texts, letters, memos etc.” 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 the request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the

Michelle Sheehan SPR24/1257 Page 3 May 9, 2024 custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based upon a conversation between a Public Records Division staff member and a Town representative, the Town confirmed that it has no additional records responsive to the request. Conclusion Accordingly, where the Town does not possess any additional records responsive to the December 7th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Dormer 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, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Mary Dormer Shelby Roy