Robert Foley v. Groton, Town of - Town Clerk (SPR 20250620)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 11, 2025 SPR25/0620 Dawn Dunbar Town Clerk Town of Groton 173 Main Street Groton, MA 01450 Dear Ms. Dunbar: I have received the petition of Robert Foley appealing the response of the Town of Groton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 27, 2025, Mr. Foley requested the following records for the period June 1, 2024 to November 11, 2024: [1] [A]ll phone calls made between [two identified Town employees] using both town phone and personal phone; respective phone bills showing calls made and received with call dates, times, and durations will suffice[;] [2] [A]ll texts between [two identified Town employees] related to town of Groton business, applying to the Town Manager’s personal phone. The Town provided a response on March 4, 2025. Unsatisfied with the response, Mr. Foley petitioned this office and this appeal, SPR25/0620, 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. 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

Dawn Dunbar SPR25/0620 Page 2 March 11, 2025 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 March 4th Response In its March 4, 2025 response, the Town provided Mr. Foley with copies of several responsive cell phone bills, and informed him that it possessed no responsive records relating to personal cell phones. The Town further informed Mr. Foley that it did not possess any text messages responsive to his request. Current Appeal In his March 4, 2025 petition to this office, Mr. Foley contended that the Town’s response was incomplete, and that an identified Town employee was using his personal cell phone to conduct Town business. In email communications to this office on March 5, 2025, the Town confirmed that it possessed no text messages responsive to the request. The Town further confirmed that the identified Town employee did not use his personal cell phone to conduct Town business. 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 Mr. Foley 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).

Dawn Dunbar SPR25/0620 Page 3 March 11, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Robert Foley