Joan P. Beckta v. Everett, City of - Solicitor's Office (SPR 20241972)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1970; SPR24/1972 Colleen M. Mejia, Esq. Office of the City Solicitor City of Everett 484 Broadway, Room 21 Everett, MA 02149 Dear Attorney Mejia: I have received petitions of Joan P. Beckta appealing the response of the City of Everett (City) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 21, 2024, in two separate requests, Ms. Beckta requested: SPR24/1970 “[s]ite plan application . . . for . . . Corey St.” SPR24/1972 “[s]ite plan application . . . for . . . Chestnut St.” The City provided responses on May 22, 2024. Unsatisfied with the responses, Ms. Beckta petitioned this office and these appeals, SPR24/1970 and SPR24/1972, were 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

Colleen M. Mejia, Esq. SPR24/1970; SPR24/1972 Page 2 July 23, 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 May 22nd responses In its May 22, 2024 responses, the City states, “[a]s this project will result in 4+ units of housing, this will need to go before the Planning Board for Site Plan Review. No such application has been received yet. No Building Permit may be issued without first receiving Site Plan Approval by the Planning Board.” Current Appeals In her appeal petitions, Ms. Beckta states the following: SPR24/1970 “I never did get the site plans for . . . Corey St. . . . I got an email saying it needs site plans, but I didn’t get any site plans.” SPR24/1972 “I didn’t get site plans for . . . Chestnut St., just a note saying it needs them. Well then, shouldn’t they be on file?” 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 Whereas the City indicates that “[n]o such application has been received yet[,]” and does not possess the records responsive to Ms. Beckta’s requests, and has no duty to create records

Colleen M. Mejia, Esq. SPR24/1970; SPR24/1972 Page 3 July 23, 2024 responsive to the requests, I will now consider these administrative appeals closed. Ms. Beckta may make a new request for the requested records at a later time. If Ms. Beckta is dissatisfied with the response to said request, she may file an appeal within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta