Mary Vendice v. Walpole, Town of - Town Clerk (SPR 20242837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2024 SPR24/2837 Derek Raynard Senior Staff Assistant Water and Sewer Department Town of Walpole 135 School Street Walpole, MA 02081 Dear Mr. Raynard: I have received the petition of Mary Vendice appealing the response of the Town of Walpole (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2024, Ms. Vendice requested “… a list of single family property addresses in the town of Walpole that are exempt from sewer use fees.” The Town provided a response on August 19, 2024. Unsatisfied with the response, Ms. Vendice petitioned this office and this appeal, SPR24/2837, 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 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

Derek Raynard SPR24/2837 Page 2 October 23, 2024 custodian must provide the responsive records. The Town’s August 19th Response In its August 19, 2024 response, the Town informed Ms. Vendice that it was not possible to generate a report containing the information she sought. However, the Town provided Ms. Vendice with two spreadsheets which listed the account numbers of Town residents billed for water and sewer service. The Town explained that the spreadsheets “… need to be combed through to remove any of the account numbers that appear on both spreadsheets. This would leave [Ms. Vendice] with only accounts that have water only and no sewer.” The Town also acknowledged that the spreadsheets did not contain the addresses Ms. Vendice was seeking. Current Appeal In her October 11, 2024 petition to this office, Ms. Vendice contends that other municipalities which employ the same software systems as the Town were able to generate reports responsive to her request. In an email to this office on October 21, 2024, the Town stated that it “… had reached out to the company that handles the software [it] use[s] for [its] water and sewer accounts.” The company explained that it was not possible to generate a list of addresses exempt from sewer fees, but that it was possible to generate reports on “… active accounts that are billed using the residential water code … [and] the sewer code …” The Town confirmed that “… it was not possible to provide the record in the format [Ms. Vendice] requested. However, with the two records that [the Town was] able to provide, she should have the information that was requested.” 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 Town to create records, I will now consider this administrative appeal closed. If Ms. Vendice 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).

Derek Raynard SPR24/2837 Page 3 October 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Mary Vendice