Nick DeMarco v. Middleborough, Town of --- Fire Department (SPR 20251585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2025 SPR25/1585 Diane Henault Administrative Assistant Middleborough Fire Department 125 North Main Street Middleborough, MA 02346 Dear Ms. Henault: I have received the petition of Nick DeMarco appealing the response of the Middleborough Fire Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 13, 2025, Mr. DeMarco requested, [A]ny and all incident reports involving Middleboro Recycling … Specifically, I am requesting: [1] Incident reports from the Fire Department [2] For all events occurring from January 1, 2019 to the present [3] Including but not limited to fires, explosions, hazardous material responses, and emergency[.] The Department responded on May 29, 2025. Unsatisfied with the Department’s response, Mr. DeMarco petitioned this office and this appeal, SPR25/1585, 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

Diane Henault SPR25/1585 Page 2 June 13, 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 Department’s May 29th response In its May 29, 2025 response, the Department states that it provided additional records to Mr. DeMarco. Current Appeal In his appeal to this office, Mr. DeMarco states: Although some documents were released, the [Department] has failed to provide several reports that I know exist, including but not limited to: [1] An explosion on March 24, 2025, which the Fire Chief personally confirmed involved a propane tank in the shredder and which shook multiple nearby homes. An incident report from April 2, 2025, which was acknowledged in prior communications. Despite repeated follow-ups (see attached screenshot), the [Department] closed the request on May 23, 2025, stating all records had been released, yet these critical reports remain missing. 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 an email to a staff attorney of the Public Records Division on June 9, 2025, the Department confirmed that it has no additional responsive records to Mr. DeMarco’s request.

Diane Henault SPR25/1585 Page 3 June 13, 2025 Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. DeMarco’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. DeMarco 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: Nick DeMarco