Frank Smith v. Swampscott, Town of - Town Clerk (SPR 20250692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2025 SPR25/0692 Jared H. LaLiberte Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: I have received the petition of Frank Smith appealing the response of the Town of Swampscott (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2024, Mr. Smith requested, “[a]ll public records (a) sent by [an identified individual] to any Swampscott Select Board member and/or the Swampscott Town Administrator; and (b) received by [an identified individual] from any Swampscott Select Board member and/or the Swampscott Town Administrator” for the period “June 1, 2024 to present.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0345 Determination of the Supervisor of Records (February 18, 2025). In my February 18th determination, I found that the Town intended to provide Mr. Smith with a further response, and ordered it to do so within ten business days. The Town provided a response on March 4, 2025. Unsatisfied with the response, Mr. Smith petitioned this office and this appeal, SPR25/0692, 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

Jared H. LaLiberte SPR25/0692 Page 2 March 25, 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. Smith with several email communications that had erroneously been sent to a Town employee’s personal email address. The Town also provided a privilege log to justify the withholding of approximately 30 email communications pursuant to the attorney-client privilege and Exemption (d) of the Public Records Law. The Town stated that there were no text messages responsive to the request. Current Appeal In his March 12, 2025 petition to this office, Mr. Smith contended that the Town possessed and was intentionally withholding text messages responsive to his request, without properly citing an exemption. Based on his petition, it appears Mr. Smith is not objecting to the Towns claims under Exemption (d) of the Public Records Law or the attorney-client privilege. 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). In a telephone conversation with this office on March 21, 2025, the Town confirmed that it possessed no text messages responsive to the request, and was withholding no records other than those identified in the privilege log. Conclusion Where the Town possesses no additional records responsive to the request, and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Smith 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).

Jared H. LaLiberte SPR25/0692 Page 3 March 25, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Frank Smith