Andrew McIsaac v. Abington, Town of - Office of the Town Clerk (SPR 20242116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2024 SPR24/2116 Leanne Adams Town Clerk Town of Abington 500 Gliniewica Way Abington, MA 02351 Dear Ms. Adams: I have received the petition of Andrew McIsaac appealing the response of the Town of Abington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 21, 2024, Mr. McIsaac requested, “e-mail messages received by [a specified email address] on June 20, 2024 between 10:00 PM ET and 11:00 PM ET.” The Town provided a response on July 23, 2024. Unsatisfied with the Town’s response, Mr. McIsaac petitioned this office and this appeal, SPR24/2116, 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. 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. 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

Leanne Adams SPR24/2116 Page 2 August 7, 2024 The Town’s July 23rd Response In its July 23, 2024 response, the Town states, “I do not have this information; I will forward your request [to] the appropriate department.” No Duty to Create Records 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone conversation between a staff attorney of the Public Records Division and the Town Clerk on August 5, 2024, the Town confirmed it had no records responsive to the request. Conclusion Where the Town confirmed that it does not possess records responsive to Mr. McIsaac’s request, I will now consider this administrative appeal closed. If Mr. McIsaac 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Andrew McIsaac