Peter Herridge v. Barnstable County- Office of the County Administrator (SPR 20250709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2025 SPR25/0709 Robin Young Public Records Access Officer Regional County Clerk Barnstable County Commissioners 3195 Main Street, P. O. Box 427 Barnstable, MA 02630 Dear Ms. Young: I have received the petition of Peter Herridge appealing the response of the Barnstable County (County) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2025, Mr. Herridge requested, “[c]opies of any and all public communications (including texts, documents, notes, emails, mail and conversation notes) and attachments thereto initiated and/or received between May 1, 2023, and July 1, 2024 in which [an identified individual] is a sender or recipient (directly, by copy, or by blind copy)” as follows: [1] Regarding any and all voter registration and get out the vote efforts in Truro, Massachusetts[;] [2] Regarding affordable housing or water in Truro, Massachusetts[;] [3] To, from and copying Town special and regular employees of Truro Massachusetts including but not limited to [identified individuals][;] [4] To, from or copying [an identified individual] or other employees or Board members of the Community Development Partnership regarding housing, voter registration and get out the vote efforts in Truro Massachusetts[;] [5] To, from or copying [an identified individual][;] [6] To, from or copying any employee or freelancer Cape Cod Times regarding voter registration or get out the vote efforts in the Town of Truro including but not limited to [identified individuals][;] [7] To, from or copying any employee or writer at the Provincetown Independent regarding voter registration or get out the vote efforts in the Town of Truro including but not limited to [identified individuals][;] [8] To, from or copying any representatives, Board Members or vendors for Advocates for Attainable Housing or Highland Affordable Housing. 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

Robin Young SPR25/0709 Page 2 March 26, 2025 Prior Appeal The requested records were the subject of a prior appeal. See SPR25/0491 Determination of the Supervisor of Records (March 5, 2025). In my March 5th determination, it was my understanding that the County intended on providing a further response to Mr. Herridge. The County responded on March 11, 2025. Unsatisfied with the response, Mr. Herridge petitioned this office and this appeal, SPR25/0709, 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. Att’y 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 County’s March 11th Response In its March 11, 2025 response, the County asserted, This is to reiterate that the County does not issue cellular phones to members of the Assembly of Delegates, for the purposes of conducting County business. I have confirmed with ... the Assembly member that is the subject of your request, that he does not use his personal cell phone to conduct County business, and further, that he does not have any text messages responsive to your requests. I would additionally note that the topics identified in your January 21st request do not pertain to County business and therefore the County does not have any obligation to even ask [an identified individual] ... to search for such records on his personal devices, but it nonetheless did so in an effort to resolve this request.

Robin Young SPR25/0709 Page 3 March 26, 2025 Current appeal In his appeal, Mr. Herridge states, “...I am unsatisfied with the response and want to have my appeal reopened in order to have your office refer it to an attorney who can opine on the issue of the lack of emails from [an identified individual’s] official account.” No Duty to Create Records Under the Public Records Law, the County is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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). Conclusion Accordingly, where the County has stated that it does not possess responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Herridge is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Peter Herridge