Frank Wood v. Framingham, City of (SPR 20242456)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2024 SPR24/2456 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street, Room B-37 Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Frank Wood appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 14, 2024, Mr. Wood requested “[a] list of all city, or taxpayer funded assets of the city that were broken and discarded, disposed of, donated, recycled … for 6/1/2023 to present.” On August 28, 2024, the City provided a response. Unsatisfied with the City’s response, Mr. Wood petitioned this office and this appeal, SPR24/2456, 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. Att’y 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

Paul J. Iversen SPR24/2456 Page 2 September 12, 2024 The City’s August 28th Response On August 28, 2024, the City provided Mr. Wood with a response stating, “[t]he Public Records law does not obligate a municipality to create records in response to records requests. There is no record responsive to your request.” Current Appeal Mr. Wood appealed this response, stating, “[p]er the blog of [a named individual] dated August 8, 2024, the exact info I requested, [the named individual] requested and received. I am seeking that exact info and the additional info from the city side.” In an email dated September 3, 2024, the City confirmed that there were no records responsive to Mr. Wood’s request, stating, “[t]he request was for a list of named items covering the time period of 6/1/23 to 8/14/24. There is no such list currently in existence.” The City identified some records concerning “… assets Schools disposed of in 2021 and 2022, but not 2023 or 2024. So that record is not responsive to [Mr. Wood’s] request.” 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 Given that the requested records do not exist and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Mr. Wood 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: Frank Wood