Joan P. Beckta v. Everett, City of - Solicitor's Office (SPR 20243435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2025 SPR24/3435 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway, Room 21 Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Joan P. Beckta appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 23, 2024, Ms. Beckta requested “[a] vendor report for vendor 2589 for FY2023, FY2024, and FY2025 to date.” The Town provided a response on December 24, 2024. Unsatisfied with the response, Ms. Beckta petitioned this office and this appeal, SPR24/3435, 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 custodian must provide the responsive 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

Colleen M. Mejia, Esq. SPR24/3435 Page 2 January 6, 2025 The City’s December 24th Response In its December 24, 2024 response, the City informed Ms. Beckta that it possessed no records responsive to her request. Current Appeal In her December 24, 2024 petition to this office, Ms. Beckta expressed her belief that responsive records existed, and attached vendor reports which had been provided to another individual. Several of the attached records referred to Vendor No. 2549. In an email communication to this office on January 2, 2025, the City confirmed that it had conducted a search for the responsive records, and that “… there are no records for the specified vendor under [Vendor No. 2589].” 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 City possesses no records responsive to Ms. Beckta’s request and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Ms. Beckta 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: Joan P. Beckta