John DeNicola v. Marshfield, Town of - Police Department (SPR 20250260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2025 SPR25/0260 Amanda Dustin Records Access Officer Marshfield Police Department 1639 Ocean Street Marshfield, MA 02114 Dear Ms. Dustin: I have received the petition of John DeNicola appealing the response of the Marshfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2025, Mr. DeNicola requested: [1] [T]he dispatch calls associated with the incidents from January 16, 2024 and the January 22, 2025 incidents regarding the chickens at [an identified address][;] [2] [A]ny incoming calls and outgoing calls and text messages for [an identified individual] from 2:02 pm to 3:30 pm on 1/22/25 regarding call number 25-851. The Department provided a response on January 24, 2025. Unsatisfied with the response, Mr. DeNicola petitioned this office and this appeal, SPR25/0260, 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 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

Amanda Dustin SPR25/0260 Page 2 January 29, 2025 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 Department’s January 24th Response In its January 24, 2025 response, the Department informed Mr. DeNicola that it possessed no records responsive to his request, and that “… the calls were directly made to the [animal control officer] line; therefore, the calls were not recorded.” Current Appeal In his January 28, 2025 petition to this office, Mr. DeNicola contested the Department’s claim that no responsive records exist. In a January 29, 2025 telephone call to this office, the Department confirmed its statement that it possessed no records responsive to Mr. DeNicola’s request. 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). Conclusion Given that the Department possesses no records responsive to Mr. DeNicola’s request and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. DeNicola 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).

Amanda Dustin SPR25/0260 Page 3 January 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John DeNicola