Jeffrey Cohen v. Brookline, Town of - Town Clerk (SPR 20250128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0128 Ben Kaufman Town Clerk Town of Brookline 333 Washington Street, Room 104 Brookline, MA 02445 Dear Mr. Kaufman: I have received the petition of Jeffrey Cohen, of the Committee for Massachusetts Voter Identification Ballot Question, on behalf of Janet Sterman, appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2024, Ms. Sterman requested the following records related to the November 5, 2024 election: [1] Extract #2, RES - list of current residents[;] [2] Extract #7, ANP - Activity Non-Partisan-list of voters[;] [3] Extract #8, VOT - list of registered voters[;] [4] Extract #21, ABS - Absentee voters[;] [5] Extract #22, EVX- Early voters[;] [6] Extract #23, Early and Absentee voters[.] The Town provided responses on December 24, 2024 and January 13, 2025. Unsatisfied with the responses, Mr. Cohen petitioned this office and this appeal, SPR25/0128, 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). 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

Ben Kaufman SPR25/0128 Page 2 January 17, 2025 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. The Town’s December 24th and January 13th Responses In its December 24, 2024 response, the Town provided records responsive to Items 1, 3, 4, 5, and 6. The Town stated that records responsive to Item 2 did not yet exist, but would likely be available in mid-January. In its January 13, 2025 response, the Town reiterated that it had provided all responsive records in its possession. The Town further stated that records responsive to Item 2 would likely be available for release by the end of January. Current Appeal In his January 14, 2025 petition to this office, Mr. Cohen characterized the Town’s response as out of compliance with the Public Records Law. In an email to this office on January 14, 2025, the Town stated: Voter activity is checked off on physical check-in books in the voting precincts on Election Day. These books then need to be reviewed and scanned by Town Clerk staff into the State’s Voter Registration Information System in order for this extract to be pulled. This work is still being done by the Town Clerk’s office, and should be complete by the end of this month. 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 only 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).

Ben Kaufman SPR25/0128 Page 3 January 17, 2025 Conclusion Given that all responsive records have been provided, and records responsive to Item 2 of the request do not yet exist as requested, I will now consider this administrative appeal closed. If Mr. Cohen 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: Jeffrey Cohen