Paula Ellis v. Melrose, City of - City Solicitor (SPR 20251458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1458 Shannon T. Phillips, Esq. City Solicitor City of Melrose 562 Main Street Melrose, MA 02176 Dear Attorney Phillips: I have received the petition of Paula Ellis appealing the response of the City of Melrose (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 5, 2025, Ms. Ellis requested “…a copy of [her] records, reports, communication on [her] case that you have discussed with any member of the public, including [her] landlord, any attorneys, Housing authority et al.” The City responded on May 7, 2025, May 20, 2025, May 21, 2025 and May 22, 2025, assigning the request reference number 25-56. Unsatisfied with the City’s responses, Ms. Ellis petitioned this office and this appeal, SPR25/1458, was opened as a result. While this appeal was pending, the City provided a supplemental response on May 22, 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

Shannon T. Phillips, Esq. SPR25/1458 Page 2 June 3, 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 City’s May 7th, May 20th, May 21st and May 22nd Responses On May 7, 2025, the City stated, “[w]e are in receipt of FOIA request. We will provide the information within 10 days of the request.” After Ms. Ellis inquired about the status of her request, a City official responded on May 20, 2025, “I will work with the Health Department to gather responsive documentation and respond back to you ASAP. I apologize greatly for any inconvenience in the delay. In the future, if you could submit any public records request through [the City’s online portal link] this will streamline all responses.” In reply, Ms. Ellis stated, “I do not have to submit request through a special link… I still have not received my requested documents.” In its May 21, 2025 response, the City clarified, “[y]ou are not required to submit records through that link, I was only sending it to you as a way to most effectively ensure your records request is received by the correct office for handling as a public records request. I will need to input your request through that system for tracking…” On May 22, 2025, the City provided a “correction order” document and stated, “[p]lease see the only documentation responsive to your request attached. The City has no additional responsive records in its possession, custody, or control.” Current Appeal In her appeal petition, Ms. Ellis states, “I can’t access the information without providing my email to access the documents. What I was able to view via a pdf attachment was only 1 report. I have requested all communications, emails, reports etc. for my case. This request was incomplete.” In its supplemental response on May 22, 2025, the City provided email attachments “showing that [Ms. Ellis] was able to open the documents produced.” The City further stated that, “[Ms. Ellis] was not required to provide an email address or register in order to open the documents on our Next Request public records platform...” In addition, the City informed this office that it also provided Ms. Ellis with a series of text messages “which [it] did not view as originally responsive since the communications were not about the actual inspection but texting to get into the residence when health arrived.” The City also confirmed in its supplemental response that it “provided [Ms. Ellis] with all responsive documents to her requests,” and further offered to mail the documents to Ms. Ellis if she preferred.

Shannon T. Phillips, Esq. SPR25/1458 Page 3 June 3, 2025 In reply to the City’s supplemental response, Ms. Ellis maintains, “[t]he response from the city is incorrect and my request is incomplete. I have not been provided a complete record of the history of communications and all reports….You cannot access the documents without registering with an email.” 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). Further, 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). Based on the City’s responses, it appears the City has provided the responsive records via its online portal and has alternatively offered to mail the documents to Ms. Ellis. Further, given that the City possesses no additional records responsive to Ms. Ellis’ request, and this office has no authority to compel the City to create records, I find the City has met its burden in responding to this request under the Public Records Law. This office encourages Ms. Ellis to communicate directly with the City to resolve any outstanding issues about the format of the records responsive to her request. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Ellis 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Paula Ellis