Joe Diver v. Dalton, Town of (SPR 20251881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1881 Rebecca L. Whitaker Records Access Officer Town of Dalton 462 Main Street Dalton, MA 01226 Dear Ms. Whitaker: I have received the petition of Joe Diver appealing the response of the Town of Dalton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 6, 2025, Mr. Diver requested “[a] list of all Finance Committee Members email contact information.” The Town responded on June 26, 2025. Unsatisfied with the response, Mr. Diver petitioned this office and this appeal, SPR25/1881, 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. 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. See 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. 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

Rebecca L. Whitaker SPR25/1881 Page 2 July 11, 2025 The Town’s June 26th Response On June 26, 2025, the Town provided Mr. Diver with a record responsive to his request. Current Appeal In his June 28, 2025 petition to this office, Mr. Diver stated, “[t]he list received is incomplete.” In a July 8, 2025 telephone call between this office and the Town, the Town confirmed that it possessed no additional records responsive to Mr. Diver’s request. 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 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 Where the Town has confirmed that it provided all responsive records in its possession and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Diver is not satisfied with the resolution of this administrative appeal, please be advised that this office share 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: Joe Diver