Andrew McIsaac v. Brockton, City of (SPR 20243324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2024 SPR24/3324 Timothy J. Cruise City Clerk City of Brockton 45 School Street Brockton, MA 02301 Dear Mr. Cruise: I have received the petition of Andrew McIsaac appealing the response of the City of Brockton (City) to three requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In three separate requests on November 17, 2024, Mr. McIsaac requested the following: [1] all e-mail messages sent to/sent from, between November 10, 2024 and November 15, 2024, [identified individual] containing the words “encampment” and/or “homeless”[;] [2] all e-mail messages sent to/sent from, between November 10, 2024 and November 15, 2024, [identified individual] containing the words “encampment” and/or “homeless”[;] [3] all e-mail messages sent to/sent from, between November 10, 2024 and November 15, 2024, [identified individual] containing the words “encampment” and/or “homeless.” Previous Appeals These requests were the subject of three previous appeals. See SPR24/3258; SPR24/3261; SPR24/3262 Determination of the Supervisor of Records (December 11, 2024). In my December 11th determination, I learned the City provided a response on December 6, 2024. Unsatisfied with the City’s response, Mr. McIssac petitioned this office and this appeal, SPR24/3324, was opened as a result. 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

Timothy J. Cruise SPR24/3324 Page 2 December 19, 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 City’s December 6th Response In its December 6th response, the City responded with responsive records stating, “[p]lease be advised that the City with the assistance of the IT department, searched each of the above Councilors’ emails with the terms you specified above, in order to provide the enclosed response. Accordingly, please find the responsive records in the City of Brockton’s care, custody and control.” Current appeal In his appeal, Mr. McIsaac states that “[s]ome of the responsive records (email messages) may well have been inadvertently altered or deleted by the email account holders after submission of my public records requests, especially considering the fact that the City Clerk (the RAO) did not provide a timely response to my requests. I assume that the email account holders were unaware of these requests. Additional responsive records might still exist on a backup server or other storage place. A common search of the email accounts is insufficient; the City should also examine metadata associated with each email account.” In a telephone call between a staff member of the Public Records Division and the City on December 13, 2024, the City confirmed that it provided all records responsive to the request. No Duty to Create Records Under the Public Records Law, the City 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).

Timothy J. Cruise SPR24/3324 Page 3 December 19, 2024 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 Where the City confirmed that it does not possess additional records responsive to Mr. McIsaac’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. McIsaac 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: Andrew McIsaac