Mark J. Brooks v. Worthington, Town of (SPR 20251013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2025 SPR25/1013 Amy Wang Selectboard Chair Town of Worthington 160 Huntington Road Worthington, MA 01098 Dear Ms. Wang: I have received the petition of Mark Brooks appealing the response of the Town of Worthington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2025, Mr. Brooks requested, “Town employee records, the cell phone company or wireless carrier (e.g., Verizon Wireless, AT&T, etc.) and cell phone numbers along with all cellular use records and data for these specific wireless phone numbers of the following employees: [three identified individuals.]” Previous Appeal This request was the subject of previous appeal. See SPR25/0908 Determination of the Supervisor of Records (April 11, 2025). In my April 11th determination, I learned that the Town intended on providing Mr. Brooks with a supplemental response. The Town responded on April 11, 2025. Unsatisfied with the Town’s response, Mr. Brooks petitioned this office and this appeal, SPR25/0908, 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

Amy Wang SPR25/1013 Page 2 April 24, 2025 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 Town’s April 11th response In its April 11, 2025 response, the Town states there are no responsive documents to the request. Current Appeal In his appeal to this office, Mr. Brooks states, “[t]here is a history of the Town of Worthington refusal to provide Public Records to Mr. Brooks and have violated the Open Meeting Law.” No Duty to Create Records Please note that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone call between a staff attorney of the Public Records Division and the Town on April 23, 2025, the Town confirmed that it searched for and has found no responsive records to Mr. Brooks’ request. Conclusion Where the Town confirmed that it does not possess records responsive to Mr. Brooks’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Brooks 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).

Amy Wang SPR25/1013 Page 3 April 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Mark Brooks