Paul Phalan v. Canton, Town of - Town Clerk (SPR 20250587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2025 SPR25/0587 Tracy Kenney Town Clerk and Records Access Officer Town of Canton 801 Washington Street, 1st Floor Canton, MA 02021 Dear Ms. Kenney: I have received the petition of Paul Phalan, appealing the response of the Town of Canton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2025, Mr. Phalan requested “…an opportunity to inspect or obtain copies of public records that pertain to the Judge Rotenberg Center [JRC], [an identified individual], [and] autumn circle, covering the entire ZBA, [identified individuals]. Please include any emails, texts, phone call records and notes. The dates we are seeking are between 10/24/24 -1/22/25.” The Town provided responses on February 3, February 20, February 25, and March 5, 2025. Unsatisfied with the Town’s responses, Mr. Phalan petitioned this office and this appeal, SPR25/0587, 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. 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

Tracy Kenney SPR25/0587 Page 2 March 13, 2025 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. Current Appeal In his appeal, Mr. Phalan states, “Canton Clerk... states she investigated my claim by merely asking the ZBA [identified individual] if he uses texts and cell to communicate. He denies it but we have first hand info that is not true!” The Town’s February 3rd, February 20th, February 25th and March 5th Responses In a response to Mr. Phalan on February 3, 2025, the Town provided a fee estimate to his request for records. Subsequently, on February 20, 2025, the Town confirmed receipt of Mr. Phalan’s fee payment of $25.00 and provided responsive records. The Town also stated that“[t]here are no text messages or phone records.” When Mr. Phalan contested that “[i]t’s common knowledge and accepted practice, the board communicates through texts and cell phones,” the Town responded again on February 25, 2025: Your statement that “It’s common knowledge and accepted practice, the board communicates through texts and cell phones” concerned me and I wanted to investigate, as deliberation by the members of the Board through private telephone calls or text messages would be a violation of the Open Meeting Law. I have since confirmed that the Board does not deliberated [sic] outside of a duly advertised public meeting of the Board of Appeals. For clarification, my statement that “there are no text messages or phone records” was not a denial or a refusal by the town to provide copies of existing records that are responsive to your request. There are no text or telephone records that meet the parameters of the request. In a further response on March 5, 2025, the Town provided email statements from each identified Board member that reiterated that no phone or text communications subject to the records request exist and confirmed that it provided all responsive records. 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).

Tracy Kenney SPR25/0587 Page 3 March 13, 2025 Where the Town has confirmed that no responsive records exist as to text messages and phone records and has no duty to create records responsive to the request, I find that the Town has met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Phalan 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Paul Phalan