Kathleen Grant v. Andover, Town of (SPR 20241494)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2024 SPR24/1494 Kathryn L. Forina, MCPPO Legal Administrator/Records Access Officer Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Forina: I have received the petition of Kathleen Grant 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 May 1, 2024, Ms. Grant initially requested “…all communications and records including but not limited to agendas, minutes, notes, drafts, presentations, emails, etc. between the BSC Group, Inc. and the [Town].” Also on May 1, 2024, Ms. Grant emailed Ms. Forina, stating, “[f]ollowing up on our phone call, I’m only interested in the Haggett’s Pond project. I am making a [public records request] for all communications and records including but not limited to agendas, minutes, notes, drafts, presentations, emails, etc. between the BSC Group, Inc. and the [Town] about the Haggett’s Pond Rail Trail project. I estimate this would have started around February 1, 2023 when the MassTrails grant application was submitted. It may not have started until after the grant was awarded which would have been before Aug. 2023.” On May 10, 2024, the Town provided a response, including responsive records. Unsatisfied with the response, Ms. Grant petitioned this office and this appeal, SPR24/1494, 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

Kathryn L. Forina SPR24/1494 Page 2 May 31, 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 Town’s May 10th Response In its May 10, 2024 response, the Town stated, “[a]ttached please find all meeting agendas and minutes from February 1, 2023 to May 1, 2024 regarding BSC Group, Inc, and Haggetts Pond Trail. Meeting and agendas and minutes can also be found here. . . . Presentations and additional information can be found on this website. . . .The requested emails are too large to forward to you by email. You can access the emails by this link. . .” Current Appeal In her petition, Ms. Grant indicates, “… [t]his is the BSC response. It is 35 pages even though it is their project and they have been on it much longer than the peer reviewers, LEC. Most everything is missing.” The Town’s May 21st Supplemental Response Subsequent to the opening of this appeal, the Town provided a supplemental response on May 21, 2024, including additional responsive records. In its May 21st response, the Town states, “…[t]he [Town] asserts that it has provided Ms. Grant with all the documents she specifically requested in her revised scope as well as additional items and information regarding the BSC Group, Inc. and the Haggetts Pond Trail Project … After the [T]own requested that Ms. Grant revise her scope, Ms. Grant specifically identified agendas, minutes, notes, drafts, presentations, emails between the BSC Group, Inc. and the [Town] from February 1, 2023 to May 1, 2024, all of which were provided to her as well as links to additional documents.” After receipt and review of the May 21st response and production of records, Ms. Grant sent the Town and this office an email, stating, “[h]ere is an example of a file that was not included in the BSC [public record request] response. This is a photo of the first of 37 pages…” The Town responded via email on May 23rd, stating, “I have confirmed again with Conservation Department Staff that the Conservation Department/Commission have not received the documents that BSC Group submitted to the Commonwealth that are shown in the photo provided.”

Kathryn L. Forina SPR24/1494 Page 3 May 31, 2024 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 Where the Town has provided responsive records in its possession at the time of the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Kathleen Grant