Geraldine Mullaly v. Swansea, Town of - Town Clerk (SPR 20250351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0351 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Geraldine Mullaly appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2025, Ms. Mullaly requested: [1] Document authorizing the appointment of the Town of Swansea’s Chief Procurement Officer/bestowing the powers and duties of the position or [2] Delegation of Procurement Powers and Duties document[.] The Town provided a response on January 23, 2025. Unsatisfied with the response, Ms. Mullaly petitioned this office and this appeal, SPR25/0351, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response on February 6, 2025. 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

Diane Pelland SPR25/0351 Page 2 February 10, 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 Town’s January 23rd Response In its January 23, 2025 response, the Town referred Ms. Mullaly to documents it had provided in response to one of her previous public records requests. Current Appeal In her February 5, 2025 petition to this office, Ms. Mullaly claimed that the Town had not properly responded to Item 2 of her request. In its February 6, 2025 response, the Town provided additional responsive records, and informed Ms. Mullaly that the Office of the Inspector General likely possessed documents responsive to Item 2 of her request. In a February 10, 2025 email communication to this office, Ms. Mullaly characterized the Town’s responses as incomplete. In email communications to this office on February 10, 2025, the Town confirmed that it had provided Ms. Mullaly with all responsive records in its possession. The Town further expressed its willingness to provide Ms. Mullaly with any responsive records which it obtained in the future. 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 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 Ms. Mullaly 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).

Diane Pelland SPR25/0351 Page 3 February 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly