Tina Brown v. Westwood, Town of - Clerk's Office (SPR 20251438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2025 SPR25/1438 Dottie Powers Town Clerk Town of Westwood 580 High Street Westwood, MA 02090 Dear Ms. Powers: I have received the petition of Tina Brown appealing the response of the Town of Westwood (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2025, Ms. Brown requested “… a copy of the executed contract or agreement between the Town of Westwood and the selected Owner’s Project Manager (OPM) for the New Fire Station 1 Project, including any amendments, addenda, or attachments.” The Town responded on May 7, 2025. Unsatisfied with the response, Ms. Brown petitioned this office and this appeal, SPR25/1438, was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response on May 23, 2025. 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

Dottie Powers SPR25/1438 Page 2 May 23, 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. The Town’s May 7th Response In its May 7, 2025 response, the Town provided Ms. Brown with responsive records. Current Appeal In her May 21, 2025 petition to this office, Ms. Brown contended that the Town had failed to provide her with a document referred to in the responsive records as “Attachment D.” In its May 23, 2025 response, the Town clarified that Ms. Brown had been provided with all responsive records. The Town further clarified that any reference to Attachment D “… was an oversight when the contract was signed. ‘Attachment D’ was never created or submitted as part of the project.” 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, I will now consider this administrative appeal closed. If Ms. Brown 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). Sincerely, Manza Arthur Supervisor of Records cc: Tina Brown Molly Fitzpatrick