Thomas Siefert v. Shutesbury, Town of (SPR 20241383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2024 SPR24/1383 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P.O. Box 264 Shutesbury, MA 01072 Dear Clerk Bannasch: I have received the petition of Thomas Siefert 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 April 10, 2024, Mr. Siefert requested, “[a] copy of any and all communications … regarding … the video recording of the Shutesbury Board of Health meeting held via Zoom on March 17, 2021, including … requests for copies of the video … as well as … issuances of copies of the video…” The Town responded on April 26, 2024. Unsatisfied with the Town’s response Mr. Siefert petitioned this office and this appeal, SPR24/1383, 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 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. 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 SPR24/1383 Page 2 May 21, 2024 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. Current Appeal In his appeal, Mr. Siefert provided several examples where he believed that records had been withheld and stated, “I believe the response from the Town Clerk was incomplete as follows.” Mr. Siefert also stated, “I respectfully request that you determine specifically whether it is appropriate to provide me any records from the personal email accounts of [two identified individuals] that are responsive to my request for a record of the video or to my request for all records of communications regarding the video…” The Town’s April 26th response In its April 26, 2024 response, the Town provided a series of records and stated, “[t]he records responsive to your request are attached.” Subsequent to the opening of this appeal, in an email dated May 12, 2024, the Town stated, “…the records Mr[.] Siefert is claiming were withheld either do not exist, or were included in this or previous records request responses to Mr[.] Siefert. The Town has no further records to provide in response to this particular 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). In a telephone call between the Town and a Public Records Division staff attorney on May 16, 2024, the Town confirmed that it had no more records responsive to the request and that the individuals named in the appeal also do not possess any further records responsive to the request. 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. Mr. Siefert is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10(A)(c).

Grace Bannasch SPR24/1383 Page 3 May 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Thomas Siefert