Julie Ahern v. Watertown, City of (SPR 20251629)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2025 SPR25/1629 Noelle Gilligan City Clerk City of Watertown 149 Main Street Watertown, MA 02472 Dear Ms. Gilligan: I have received the petition of Julie Ahern, Esq. appealing the response of the City of Watertown (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 11, 2025, Attorney Ahern requested the following records referenced in an April 30, 2025 communication from the City: [1] [A] copy of the “response” that Watertown states was mailed on “January 10, 2025”[;] [2] Please also include a copy of the envelope and all other documentation including all of the documentation from the USPS that documents and/or explains the cause of the “undeliverable” status of the “January 10, 2025” “response”. The City responded on May 14, 2025. Unsatisfied with the response, Attorney Ahern petitioned this office and this appeal, SPR25/1629, 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

Noelle Gilligan SPR25/1629 Page 2 June 13, 2025 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. 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 14th Response In its May 14, 2025 response, the City provided Attorney Ahern with a copy of its January 10, 2025 response. The City informed Attorney Ahern that “[t]he envelope and contents were damaged in transit and address illegible.” The City further stated that it had no additional responsive records. Current Appeal In her June 4, 2025 petition to this office, Attorney Ahern contended that the City had not properly responded to Item 2 of her request. In an email communication to this office on June 12, 2025, the City stated: The only documents we have in response to [Ms. Ahern’s] request are the Water Regulations that we have provided multiple times. She requested a copy of the response we had sent back on January 10, 2025, however, the packet we mailed to Ms. Ahern was returned to us as undeliverable. It appeared the envelope may have been caught in the machinery at the Post Office as it was returned back to us as undeliverable and in a USPS envelope. The original envelope it was mailed in, as well as the contents were ripped and partially shredded. The only legible portion of the envelope was the mailed from address … We do not have the original packet as it was destroyed … As we do not have the destroyed packet, we have no additional responsive documents. 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).

Noelle Gilligan SPR25/1629 Page 3 June 13, 2025 Conclusion Given that all responsive records have been provided, and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Attorney Ahern 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: Julie Ahern, Esq.