Sanjay Patel v. Foxborough, Town of (SPR 20252021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2025 SPR25/2021 Robert E. Cutler, Jr. Town Clerk Town of Foxborough 40 South Street Foxborough, MA 02035 Dear Mr. Cutler: I have received the petition of Sanjay Patel appealing the response of the Town of Foxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 23, 2025, Mr. Patel requested, “a summary of all credit card processing fees collected by the Town’s third-party payment processor over the past five fiscal years, broken down annually and by category of service (e.g., water, property taxes, permitting, etc.).” The Town responded on April 28, 2025, and Mr. Patel subsequently modified his request to include “a full copy of [the Town’s] current contract with the third-party payment processor, including any amendments, attachments, or exhibits.” Unsatisfied with the Town’s response, Mr. Patel petitioned this office and this appeal, SPR25/2021, was opened as a result. While this appeal was pending, the Town provided a supplemental response on July 16, 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 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

Robert E. Cutler, Jr. SPR25/2021 Page 2 July 18, 2025 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 Town’s April 28th Response On April 28, 2025, an attorney for the Town stated, “[i]n short, there are no records responsive to your request.” Current Appeal In his appeal petition, Mr. Patel argued that the Town can obtain responsive records from a third party and stated that, “[the Town] completely ignored my request for the contract.” In a telephone conversation with this office on July 16, 2025, the Town confirmed that it possesses no records responsive to Mr. Patel’s original request and was not in possession of any records responsive to Mr. Patel’s request modification until it recently received the responsive contract from a third party. In a supplemental response on July 16, 2025, the Town provided the responsive contract subject to redactions and stated, “[a]t the time of the request, the Town was not in possession of a copy of the contract. In the interim, the vendor provided the Town with a copy of the contract.” In a reply to the Town on the same day, Mr. Patel stated, “[m]y primary request was for fee data… This Order Form is not the complete contract… If you could get this from InvoiceCloud, you can certainly get: (1) the fee data I originally requested… [and] (2) the complete Biller Agreement… The Town’s own actions prove these records exist and are accessible. There is no valid basis for continued withholding.” 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).

Robert E. Cutler, Jr. SPR25/2021 Page 3 July 18, 2025 Conclusion Given that the Town has confirmed that it possesses no additional records responsive to Mr. Patel’s request, and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Patel 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: Sanjay Patel