Timothy Burke v. Dennis, Town of (SPR 20242518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2024 SPR24/2518 Theresa T. Bunce Town Clerk Town of Dennis 458 Main Street P. O. Box 2060 South Dennis, MA 02660-1614 Dear Ms. Bunce: I have received the petition of Timothy Burke, Esq., of Burke & Associates, appealing the response of the Town of Dennis (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2024, Attorney Burke made three requests for documents related to “… Uncle Bills Way, including but not limited to any documents which relate to Building Permit No. 2685.” The Town provided a response on August 9, 2024. Unsatisfied with the response, Attorney Burke petitioned this office and this appeal, SPR24/2518, 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 town 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 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

Theresa T. Bunce SPR24/2518 Page 2 September 17, 2024 custodian must provide the responsive records. The Town’s August 9th Response In its August 9, 2024 response, the Town provided records responsive to Attorney Burke’s requests, and stated, “[t]here were no [v]ariances applied for or granted by Health.” Current Appeal In his September 5, 2024 petition to this office, Attorney Burke states, “Dennis has failed to properly respond … the filing of a variance request with Dennis is imminent. Prior rulings, if any, are relevant to this request.” In emails to this office dated September 10, 2024, the Town confirmed that its August 9th response contained all records in its custody responsive to Attorney Burke’s requests. 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 Town has confirmed that all responsive records have been provided and this office has no authority to compel the Town to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Burke 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: Timothy Burke, Esq.