Nicole Ferguson v. Lancaster, Town of - Town Administrator (SPR 20242487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2024 SPR24/2487 Kate Hodges Town Administrator Town of Lancaster 701 Main Street, 2nd Floor Lancaster, MA 01523 Dear Ms. Hodges: I have received the petition of Nicole Ferguson appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2024, Ms. Ferguson queried, “. . . which neighbor trespassed on [an identified] property to take [an identified set of] pictures?” On September 3, 2024, the Town provided a response. Unsatisfied with the Town’s response, Ms. Ferguson petitioned the Supervisor of Records, and this appeal, SPR24/2478, was opened as a result. While this appeal was pending, the Town provided a supplemental response to this office dated September 3, 2024. 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

Kate Hodges SPR24/2487 Page 2 September 12, 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 her appeal petition, Ms. Ferguson contends the following: . . . I requested [an identified representative of the Town] to tell us which neighbor trespassed our property to take said pictures. . . . Today, we received [the Town representative’s] response, and he refused to disclose who sent him the pictures and said that he had no emails and just the pictures. . . . [The Town representative] stated that these pictures were sent to him by a neighbor, and I am requesting that he turns over the information requested which was to answer the question, “which neighbor trespassed on the property to take the pictures?” The Town’s September 3rd Responses In its September 3, 2024 response, the Town provided two photos responsive to those identified in Ms. Ferguson’s inquiry and explained that it did “not have any emails responsive to [her] request. . . .” Subsequent to the opening of this appeal, in an email to this office dated September 3, 2024, the Town further advised that it “is only in possession of the original email from [an identified representative of the Town] . . . where he . . . cited receiving the complaint. . . . The photos were attached. The Town is not aware, nor do we have any documents, relative to how [the Town representative] came to possess the photos and to whom they belong.” No Duty to Answer Questions, Conduct Research Ms. Ferguson is advised that 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). Pursuant to 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). Where Ms. Ferguson submitted a question to the Town, I find the Town has no duty under the Public Records Law to answer such question. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ferguson wishes to submit a request for public records to the Town, and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kate Hodges SPR24/2487 Page 3 September 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Nicole Ferguson