Robert Bland v. Rockport, Town of (SPR 20243132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3132 Melanie Waddell Town of Rockport Town Hall 34 Broadway Rockport, MA 01966 Dear Ms. Waddell: I have received the petition of Robert Bland appealing the response of the Town of Rockport (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2024, Mr. Bland requested the following records: [1] Rights of Way Committee records stored on the Town’s Google Gsuite platform under the ‘Shared with me’ in the ‘Rightsofway-Share’ folder, including but not limited to the following subfolders: o Annual Records subfolder; o General Operations and Admin subfolder; o Project and Event Records subfolder; o Reference Documents subfolder; o Temporary Working Folder subfolder. Previous appeal This request was the subject of a previous appeal. See SPR24/2929 Determination of the Supervisor of Records (November 5, 2024). In my November 5th determination, I ordered the Town to provide Mr. Bland with a response to his request. The Town provided a response on November 15, 2024. Unsatisfied with the Town’s response, Mr. Bland petitioned this office and this appeal, SPR24/3132, was opened as a result. While this appeal was pending, the Town submitted a supplemental response on December 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 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

Melanie Waddell SPR24/3132 Page 2 December 3, 2024 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. Current Appeal In his appeal petition, Mr. Bland contends that the Town possesses records responsive to his request and states, “[p]ublic records of the Rockport Rights of Way Committee indicate that the records requested on September 26 are, in fact, in the custody and control of the Town.” In support of his argument, he provides “minutes of various meetings of the Committee detailing the identification, sorting, and moving of the requested records online, and use of the Town’s GSuite platform” and the “[‘]Rights of Way Google Drive Sharing Overview[’] acknowledging that it [‘]uses the town’s Google Gsuite platform to archive and share digital records[’].” The Town’s Responses In its November 15, 2024 response, the Town stated, “[t]here are [‘]no records responsive to this request[’]. . . . Mr. Bland’s request has been closed via our public records request portal FOIA.” In its supplemental response on December 3, 2024, the Town confirmed that it did not possess responsive records and advised, “[p]lease note the minutes referenced are from 2018 and 2019. Our response remains the same, there are no responsive records that we are aware of.” No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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).

Melanie Waddell SPR24/3132 Page 3 December 3, 2024 Conclusion Accordingly, where the Town has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Bland is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Robert Bland