Bob Murchison v. Sherborn, Town of - Town Clerk (SPR 20243323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3323 Jacklyn R. Morris Town Clerk Town of Sherborn 19 Washington Street Sherborn, MA 01770 Dear Ms. Morris: I have received the petition of Bob Murchison appealing the response of the Town of Sherborn (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 28, November 8, and November 26, 2024, Mr. Murchison requested: [1] all emails and texts of [an identified Town employee] to or from [an identified Town employee] (June 2024 to October 2024)[;] [2] all text messages sent by [an identified Town employee] discussing BOH matters from October 27th to … November 8th[;] [3] any texts sent by [an identified Town employee] to [an identified Town employee] on November 14 and 15, 2024. The Town provided responses on November 27 and December 6, 2024. Unsatisfied with the responses, Mr. Murchison petitioned this office and this appeal, SPR24/3323, 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. 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

Jacklyn R. Morris SPR24/3323 Page 2 December 23, 2024 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. The Town’s November 27th and December 6th Responses In its November 27, 2024 response, the Town provided several text messages responsive to Request #1. In its December 6, 2024 response, the Town provided several text messages responsive to Request #2, and informed Mr. Murchison that it possessed no records responsive to Request #3. Current Appeal In his December 11, 2024 petition to this office, Mr. Murchison characterized the Town’s response as “woefully incomplete.” Mr. Murchison provided copies of several undated text messages which he argued were responsive to his requests and not provided to him by the Town. In an email to this office on December 12, 2024, the Town confirmed that all responsive records in its custody had been provided to Mr. Murchison. The Town further confirmed that it had not redacted or withheld any text messages from the identified Town employees, and that the identified Town employees had been reminded of their “… obligation to produce any public records created on [their] personal devices to [the Town] on a regular basis.” 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 all responsive records have been provided and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Murchison 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, §§

Jacklyn R. Morris SPR24/3323 Page 3 December 23, 2024 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Bob Murchison